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LAW     BOOKS 

257  So.  Spring  St.,  Room  210 
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THE  LIBRARY 

OF 

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OF  CALIFORNIA 

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D  U  T  I  1-;  s 


Sheriffs  and  Constables 


PARTICULARLY  UNDER  THE  PRACTICE  IN 

CALIFORNIA    AND    THE    PACIFIC 

STATES  AND  TERRITORIES. 


PRACTICAL  FORMS  FOR  OFFICIAL  USE. 


BY 

W.  S.  HARLOW. 

Ml 


THIRD    EDITION  —  REVISED. 


SAN     FRANCISCO: 

BANCROFT-WHITNEY    COMPANY, 

Law  Publishers  and  Law  Booksellers. 

190  7. 


Hill 
1907   ' 


Entered    according   to    Act    of    Congress,    in   the   year    1894,    by 

W.    S.    HARLOW, 

In    the    Office    of   the    Librarian    of    Congress   at    Washington. 


Copyright   1907 
W.    S.   HARLOW. 


The   Murdock  Press. 


PREFACE  TO  THE  THIRD   EDITION. 


In  the  preparation  of  this  volume  the  author  has  aimed  to 
furnish,  as  a  guide  to  sheriffs  and  constables,  the  laws  of  the 
state  of  California  relating  to  their  official  duties,  with  such 
interpretations  of  those  laws  as  have  been  made  by  the  supreme 
court  of  California,  together  with  such  observations  and  sug- 
gestions concerning  the  duties  of  officers  as  the  writer  has 
stored  up  in  an  experience  of  twenty-seven  years  of  uninter- 
rupted service  in  the  sheriff's  office  in  this  state. 

In  the  present  edition  the  text  has  been  rewritten  and  largely 
amplified  on  nearly  every  subject  treated,  and  the  whole  work 
has  been  rearranged.  The  number  of  sections  has  been  almost 
doubled,  the  additions  being  taken  up,  to  a  great  extent,  by 
recent  decisions  and  by  code  provisions  not  incorporated  in 
the  former  editions. 

While  the  result  of  nearly  thirty  years'  active  experience 
of  the  author  in  the  sheriff's  office  has  been  given  to  this  work, 
my  aim  in  the  present  revision  has  been  to  make  it  not  only 
a  valuable  one  for  the  sheriff  and  constable,  but  also  for  the 
practicing  attorney,  as  to  all  matters  with  which  these  officers 
have  to  deal.  y^    S    HARLOW. 

Oakland,  Cal.,  June  i.  1907. 


>6V764 


TABLE    OF    CONTENTS. 


Chapter.  Sections. 

I.     Origin  and  general  duties   1-3 

II.     Sheriff — General   regulations  4-94 

III.  Constables   95-99 

IV.  Summons 100-135 

\'.     SubpcEnas  and  citations   136-158 

VI.     Arrest  and  bail i^q-i^S 

VII.     Claim  and  delivery   i/g-20D 

VIII.     Injunction 20oa-200c 

IX.     Attachment — Generally 201-228 

X.              "          — Personal  property 230-299 

XI.     Garnishment   300-322 

XII.     Attachment — Real  property 323-331 

XIII.     Executions — Generally 33^-37'^ 

X.IV.             "          ■ — Personal  property 372-394 

XV.             "          — Real  property 395-402 

XVI.     Exemption  from  execution 403-467 

XVII.     Redemption  from  execution  sale 468-500 

X\'III.     Sheriff's  deeds   501-512 

XIX.     Sheriff's  sales   513-600 

XX.     Fraudulent  transfers   601-616 

XXI.     Fixtures 617-631 

XXII.     Suits  against  sheriff's 632-665 

XXIII.  Writ  of  assistance   666-674 

XXIV.  Writ  of  restitution 675-689 

XXV.     Arrests 690-730 

XXVI.     Habeas  corpus 731-/39 

XXVII.     Fugitives  from  justice 740-747 

XXVIII.     Rewards 748-753 

XXIX.     Search  warrants 754-762 

XXX.     County  jail 763-/87 

XXXI.     Fees  and  salaries 788-814 

XXXII.     Sheriffs'  and  constables'  forms 815-900 


CHAPTER  I. 

ORIGIN  AND  GENERAL  DUTIES. 

§  I.     Origin  of  the  ofifice. 

§  2.     Duties  at  common  law.  , 

§  3.     Duties  in  the  United  States. 

§  I.  Origin  of  the  office.  The  office  of  sheriff 
is  one  of  great  antiquity,  one  of  the  most  ancient  of 
all  those  existing  under  our  form  of  government. 
The  word  "sheriff"  has  its  origin  in  two  Saxon  words, 
— scir,  denoting  shire,  or  county,  and  gerefa,  reeve, 
or  bailiff.  When  the  British  kingdom  was  first  sub- 
divided into  counties  or  shires,  the  custody  of  each 
shire  is  said  to  have  been  committed  to  an  earl, 
whose  deputy  was  known  in  Latin  as  vice-comes. 
When  the  earl,  by  reason  of  other  high  employ- 
ments, became  relieved  of  all  active  duty  as  to  the 
affairs  of  the  county,  his  labor  was  laid  on  the  sheriff, 
who  became  the  representative  of  the  king,  and  was 
the  "first  man  of  the  county,"  superior  in  rank  to  any 
nobleman  within  its  limits,  during  his  term  of  office. 
( I  Blackstonc,  pp.  339,  343.)  Originally  the  sheriff's 
duties  were  necessarily  both  ministerial  and  judicial, 
but  in  later  years,  by  relegation  of  the  judicial  func- 
tions to  the  various  courts,  his  essential  and  appro- 
priate duties  have  been  as  "keeper  of  the  king's  peace, 
ministerial  officer  of  the  superior  courts,  and  king's 
bailiff,"  although  he  has  still  continued  to  exercise, 


§  2  SHERIFFS  AND  CONSTABLES.  8 

to  some  extent  and  in  certain  cases,  the  powers  of 
a  judge.  In  Scotland  the  sheriff  is  still  properly  a 
judge,  but  with  limited  ministerial  powers,  and  in 
London  he  holds  what  is  known  as  the  sheriff's  high 
court,  having  cognizance  of  certain  personal  actions. 

§  2.  Duties  at  common  law.  The  sheriff  is  the 
chief  executive  officer  of  the  county.  At  common 
law  it  was  his  duty  to  execute  all  process  that  issued 
from  its  courts,  carrying  into  effect  their  judgments 
within  his  own  county,  except  where  he  is  a  party, 
in  which  case  the  coroner  acts  in  his  stead.  It  is 
also  his  duty  to  take  charge  of  all  prisoners  pending 
trial,  and  to  execute  the  sentence  of  the  court,  to  take 
charge  of  the  county  jail  and  protect  it  against  all 
rioters,  and  to  seize  and  take  charge  of  all  escheats, 
wrecks,  estrays,  and  the  like.  He  is  the  chief  con- 
servator of  the  public  peace,  and  it  is  his  duty  not 
only  to  preserve  the  peace,  but  to  apprehend  and 
commit  to  prison  all  persons  who  break  the  peace 
or  attempt  to  do  so,  and  also  to  pursue  and  arrest 
criminals  and  escapes,  calling  the  posse  comitatus, 
if  necessary,  in  the  execution  of  these  or  any  of  his 
duties.  At  common  law  he  also  possessed  extensive 
judicial  functions,  in  summoning  sheriff's  juries  and 
holding  courts  of  inquiry  to  estimate  damages  or 
determine  ownership;  but  this  class  of  powers  is  in 
this  country  greatly  limited,  or  entirely  done  away 
with,  by  the  various  statutory  provisions  prescribing 
his  powers  and  duties.  His  jurisdiction  is  generally 
bounded  by  his  own  county,  but  he  may  pursue 
escapes  and  perform  mere  ministerial  acts  out  of  the 
county.  {Bouvier's  Law  Diet.,  title  ''Sheriff s'\'  22 
Am.  &  Eng.  Encyr.  of  Law,  p.  525.) 


9  ORIGIN  AND  GENERAL  DUTIES.  §  3 

§  3.  Duties  in  the  United  States.  In  our  coun- 
try the  duties  of  the  sheriff  are  in  most  states  pre- 
scribed by  code  or  statutory  provisions,  but  are  sub- 
stantially the  same  as  at  common  law.  Some  of  the 
common-law  powers  and  duties  have  been  curtailed 
or  entirely  taken  away,  such  as  judicial  powers  and 
duties  as  to  estrays,  and  other  special  powers  and 
duties  have  been  added. 


CHAPTER  II. 

SHERIFF — GENERAL  REGULATIONS. 

§    4.  Who  are  eligible. 

§    5.  Election  and  term  of  office. 

§    6.  Oath  of  office. 

§    7.  Official  bond. 

§    8.  Special  liability  on  bond. 

§    9.  Bond  of  ex  officio  officer. 

§  10.  Assuming  office  without  having  qualified. 

§11.  Exercising  functions  of  office  wrongfully. 

§  12.  Consolidation  with  tax-collector. 

§  13.  Qualification  and   appointment  of  deputies. 

§  14.  Oath  and  bond  of  deputy. 

§15.  Powers  and  duties  of  deputies. 

§  16.  Deputies  for  new  courts — Salary. 

§17.  Liability  for  acts  of  deputy. 

§  18.  Buying  appointments  to  office. 

§19.  Taking  rewards  for  deputation. 

§  20.  Office  hours. 

§21.  Saturday  half-holiday. 

§  22.  Records  open  to  inspection. 

§  23.  General  duties. 

§  24.  Process  and  notice  defined. 

§  25.  Resistance  to  process — Posse  comitatus. 

§  26.  Sheriff  to  act  as  court  bailiff. 

§  2J.  Summoning  jurors. 

§  28.  Summons  to  jurors  by  mail  not  good. 

§  29.  Misconduct  of  jurors. 

§  30.  Care  of  jury. 

§31.  Diligence  reciuired  in  service  of  process. 

§  32.  Liability  for  delay. 


II  GENERAL  REGULATIONS. 

§  2^.  Specially  conferred  powers  and  duties. 

§  34.  Attendance  upon  supervisors. 

§  35.  Process  of  court-martial. 

§  36,  Duties  as  to  wrecks. 

§  ^y.  Removal  of  intruders  on  state  waste  lands. 

§  38.  To  provide  rooms  for  courts  and  judges — When. 

§  39.  Sheriff  as  auctioneer. 

§  40.  Prevention  of  offenses. 

§  41.  Prevention  of  duels. 

§  42.  Suppression  of  riots. 

§  43.  Remaining  at  place  of  riot  after  warning. 

§  44.  Neglect  to  disperse  rioters. 

§  45.  Prosecution  of  gamblers. 

§  46.  Offfcer  must  not  act  as  attorney. 

§  47.  May  administer  oaths. 

§  48.  Payment  of  moneys  to  treasurer. 

§  49.  Sheriff'  to  deliver  dead  bodies  to  physicians. 

§  50.  Food  and  lodging  for  juries. 

§  51.  Embezzlement  and  falsification  of  accounts. 

§  52.  Larceny,  mutilation,  or  destruction  of  records. 

§  53.  Breach  or  omission  of  duty. 

§  54.  False  certificates. 

§  55.  Assaults  by  offfcers. 

§  56.  Sheriff's  badges. 

§  57.  Appointment  of  under  sheriff. 

§  58.  Direction  to  sheriff  must  be  in  writing. 

§  59.  When  sheriff  justified  in  executing  process. 

§  60.  Offfcer  to  exhibit  process. 

§  61.  Service  on  sheriff,  how  made. 

§  62.  Return  of  process  from  another  county. 

§  63.  Return  prima  facie  evidence. 

§  64.  Penalty  for  non-return  of  process,  etc. 

§  65.  Liability  for  refusing  to  levy. 

§  66.  Neglect  or  refusal  of  sheriff'  to  pay  over  moneys. 

§  67.  Service  of  writs  by  telegraph. 

§  68.  Coroner  to  execute  process  when  sheriff  a  party. 

§  69.  Elisors  to  act  in  cases  designated. 

§  70.  Fees  of  coroner  or  elisor. 

§  71.  Vacancies. 


§§4,5  SHERIFFS  AND   CONSTABLES.  12 


5^  /^ 


When  vacancy  exists^ — Generally. 

§  73.  Resignation — To  whom  sent. 

§  74.  Removal  from  office  by  summary  proceedings. 

§  75.  Accusation  by  grand  jury. 

§  76.  Absence  from  the  state. 

§  yj.  Conviction  of  certain  offenses. 

§  78.  Withdrawal  of  sureties. 

§  79.  How  vacancy  is  filled. 

§  80.  Not  to  be  interested  in  certain  contracts. 

?  81.  Not  to  purchase  at  certain  sales. 

§  82.  Not  to  deal  in  scrip,  etc. 

§  83.  Penalty  for  violation. 

§  84.  Expiration  of  term — Execution  of  process. 

§  85.  Unfinished  business — Compensation  of  successor. 

§  86.  To  surrender  books,  etc.,  to  successor. 

§  87.  Resisting  public  officers. 

§  88.  Justifiable  homicide  by  public  officers. 

§  89.  Retaking  goods  from  officer. 

§  90.  Giving  or  offering  bribes  to  officer. 

§  91.  Fish  nets — Confiscation  unauthorized. 

§  92.  Computing  time. 

§  93-  When  act  falls  on  holiday. 

§  94.  Legal  holidays. 

§  4.  Who  are  eligible.  No  person  is  eligible  to 
office  who,  at  the  time  of  his  election,  is  not  of  the 
age  of  twenty-one  years,  or  over,  a  citizen  of  the 
state,  and  an  elector  of  the  county.  [California. 
County  Govt.  Bill,  sec.  56;  Stats.  1907,  p.  363.) 

§  5.  Election  and  term  of  office.  The  sheriff  is 
elected  at  the  general  state  election  in  November, 
for  a  term  of  four  years,  and  takes  office  at  twelve 
o'clock  meridian  on  the  first  Monday  after  the  first 
day  of  January  next  succeeding  his  election.  He 
holds  his  office  until  his  successor  is  elected  or  ap- 
pointed and  qualified.  {California.  County  Govt. 
Bill,  sec.  60;  Stats.  1907,  p.  362.) 


13  GENERAL   REGULATIONS.  §§6,7 

§  6.  Oath  of  office.  Before  entering  on  the  du- 
ties of  his  office,  the  sheriff  must  take  and  subscribe 
the  following  oath:  "I  do  swear  [or  affirm]  that  I 
will  support  the  constitution  of  the  United  States  and 
the  constitution  of  the  state  of  California,  and  that  I 
will  faithfully  discharge  the  duties  of  the  office  of 
sheriff  according  to  the  best  of  my  ability."  This 
oath  may  be  taken  before  any  officer  authorized  to 
administer  oaths,  and  must  be  subscribed  and  filed 
with  the  county  clerk  within  ten  days  after  he  has 
notice  of  his  election,  or  before  the  expiration  of 
fifteen  days  from  the  commencement  of  his  term  of 
office,  when  no  such  notice  has  been  given.  (Cali- 
fornia.   Pol.  Code,  sees.  704,  707,  708,  709.) 

§  7.  Official  bond.  The  sheriff  must  give  an  of- 
ficial bond  in  the  amount  prescribed  by  the  board  of 
supervisors,  which  bond  must  be  approved  in  writing 
by  the  judge,  or  judges,  if  there  be  more  than  one,  of 
the  superior  court,  recorded  in  the  office  of  the  county 
recorder,  and  filed  in  the  office  of  the  county  clerk 
within  the  time  prescribed  for  filing  his  oath  of  office. 
The  condition  of  the  bond  must  be  that  the  principal 
will  well,  truly,  and  faithfully  perform  all  official 
duties  then  required  of  him  by  law,  and  also  all  such 
additional  duties  as  may  be  imposed  on  him  by  any 
law  of  the  state  of  California.  Such  bond  must  be 
signed  by  the  principal  and  at  least  two  sureties.  All 
persons  offered  as  sureties  shall  be  examined,  on  oath, 
touching  their  qualifications,  and  no  person  can  be 
admitted  as  surety  on  any  such  bond  unless  he  is  a 
resident  and  freeholder  or  householder  within  the 
state,  and  is  worth  in  real  or  personal  property,  or 
both,  situate  in  this  state,  the  amount  of  his  under- 


§§8-II  SHERIFFS  AND  CONSTABLES.  14 

taking,  over  and  above  all  sums  for  which  he  is 
already  liable,  exclusive  of  property  exempt  from 
execution  and  forced  sale.  Neither  the  county  clerk, 
tax-collector,  treasurer,  recorder,  auditor,  assessor, 
district  attorney,  nor  a  member  of  the  board  of  super- 
visors of  the  same  county,  shall  be  accepted  as  a 
surety.  (California.  County  Govt.  Bill,  sec.  69; 
Stats.  1907,  p.  362.  Also,  Pol.  Code,  sees.  944,  947, 
952,  955-) 

§  8.  Special  liability  on  bond.  "Whenever,  ex- 
cept in  criminal  prosecutions,  any  special  penalty, 
forfeiture,  or  liability  is  imposed  on  any  officer  for 
non-performance  or  malperformance  of  official  du- 
ties, the  liability  therefor  attaches  to  the  official 
bond  of  such  officer,  and  to  the  principal  and  sureties 
thereon."  {California.  County  Govt.  Bill,  sec.  64; 
Stats.  1893,/).  367.) 

§  9.  Bond  of  ex  officio  officer.  When,  by  stat- 
ute, the  sherifif  is  ex  officio  tax-collector,  he  must  give 
a  separate  bond  for  each  office.  (People  v.  Burk- 
hart,  76  Cal.  606,  18  Pac.  776.) 

§  10.    Assuming  office  without  having  qualified. 

^'Every  person  who  exercises  any  function  of  a  public 
office  without  taking  the  oath  of  office,  or  with- 
out giving  the  required  bond,  is  guilty  of  a  misde- 
meanor."     (California.     Pen.  Code,  sec.  65.) 

§11.    Exercising  functions  of  office  wrongfully. 

^'Every  person  who  willfully  and  knowingly  intrudes 
himself  into  any  public  office  to  which  he  has  not 
been  elected  or  appointed,  and  every  person  who, 


15  GENERAL  REGULATIONS.  §§  12,  1 3 

having  been  an  executive  officer,  willfully  exercises 
any  of  the  functions  of  his  office  after  his  term  has 
expired,  and  a  successor  has  been  elected  or  ap- 
pointed and  has  qualified,  is  guilty  of  a  misde- 
meanor."    (California.    Pen.  Code,  sec.  Ji^.) 

§  12.  Consolidation  with  tax-collector.  In  coun- 
ties where  the  board  of  supervisors,  by  proper  ordi- 
nance, may  so  elect,  the  duties  of  sheriff  and 
tax-collector  may  be  consolidated;  and  in  counties 
where  the  duties  of  said  officers  have  been,  or  may 
hereafter  be,  consolidated,  in  either  manner  above 
designated,  the  board  of  supervisors  thereof,  by 
proper  ordinance,  may  elect  to  separate  the  duties 
so  consolidated,  and  reconsolidate  them  in  any  other 
manner  above  provided,  or  may  separate  said  duties 
without  reconsolidation,  and  provide  that  the  duties 
of  each  office  shall  be  performed  by  a  separate  per- 
son, whenever  in  their  discretion  the  public  interest 
will  be  best  subserved  thereby.  When  such  offices 
are  united  and  consolidated,  the  person  elected  to 
fill  the  offices  so  united  and  consolidated  must  take 
the  oath  and  give  the  bond  required  for  each,  dis- 
charge all  the  duties  pertaining  to  each,  and  receive 
the  compensation  affixed  to  the  offices.  (California. 
County  Govt.  Bill,  sees.  57,  59;  Stats.  1893,  PP- 
366,  367.) 

§  13.    Qualification  and  appointment  of  deputies. 

The  sheriff  may  appoint  as  many  deputies  as  mav  be 
necessary  for  the  prompt  and  faithful  discharge  of 
the  duties  of  his  office.  Such  appointment  must  be 
made  in  writing,  and  filed  in  the  office  of  the  county 
clerk;  and  until  such  appointment  is  so  made  and 


§§  14-17         SHERIFFS  AND  CONSTABLES.  1 6 

filed,  and  until  such  deputy  shall  have  taken  the 
oath  of  ofiice,  no  one  shall  be  or  act  as  such  deputy. 
Deputies  must  be  citizens  of  the  United  States.  No 
county  officer  must  be  appointed  or  act  as  the  deputy 
of  another  officer  of  the  same  county,  except  in  cases 
where  the  pay  of  the  officer  so  appointed  amounts 
to  a  sum  less  than  seventy-five  dollars  per  month. 
{California.  County  Govt.  Bill,  sec.  60;  Stats.  1907, 
p.  363,;  Stats.  1880,  p.  23;  also,  Pol.  Code,  sec.  843.) 

§  14.  Oath  and  bond  of  deputy.  All  deputies 
must,  within  ten  days  after  receiving  notice  of  their 
appointment,  take  and  file  an  oath  in  the  manner 
required  of  their  principals,  and  may  be  required 
to  give  an  official  bond  in  a  sum  to  be  fixed  by  the 
sherift".      {California.     Pol.  Code,  sees.  910,  985.) 

§  15.  Powers  and  duties  of  deputies.  A  dep- 
uty has  the  same  powers  and  duties  as  his  principal, 
and  whenever  the  official  name  of  any  principal  offi- 
cer is  used  in  any  law  conferring  power,  or  imposing 
duties  or  liabilities,  it  includes  deputies.  {Califor- 
nia. County  Govt.  Bill,  sec.  62;  Stats.  1893,  p.  367; 
also,  Pol.  Code,  sec.  865.) 

§  16.  Deputies  for  new  courts — Salary.  In  coun- 
ties where  the  number  of  judges  of  the  superior 
court  has  been  increased  since  January  i,  1887,  or 
shall  thereafter  be  increased,  the  sheriff  is  allowed  an 
additional  deputy  for  each  additional  judge,  his 
salary  to  be  $125  per  month,  payable  out  of  the 
county  treasury.     {California.     Stats.  1893,  p.  507.) 

§  17.  Liability  for  acts  of  deputy.  The  sheriff 
and  his  sureties  are  responsible  for  all  official  neglect 


17  GENERAL  REGULATIONS.  §§  l8-20 

or  misconduct  of  his  deputies,  and  also  for  his  acts 
not  required  by  law,  where  he  assumes  to  act  under 
color  or  by  virtue  of  his  office.  (5  Am.  &  Eng. 
Ency.  of  Law,  p.  634.)  A  trespass  committed. by 
a  deputy  sheriff,  in  his  official  character,  is  consid- 
ered in  law  as  committed  directly  and  personally 
by  his  principal,  and  the  latter  is  liable  therefor. 
(Hirsch  V.  Rand,  39  CaL  315;  JVhitney  v.  Butter- 
field,  13  CaL  335,  j^  Am.  Dec.  584.) 

§  18.  Buying  appointments  to  office.  "Every  per- 
son who  gives  or  offers  any  gratuity  or  revvard,  in 
consideration  that  he  or  any  other  person  shall  be 
appointed  to  any  public  office,  or  shall  be  permitted 
to  exercise  or  discharge  the  duties  thereof,  is  guilty 
of  a  misdemeanor."      {California.     Pen.   Code,  sec. 

§  19.  Taking  rewards  for  deputation.  "Every 
public  officer  who,  for  any  gratuity  or  reward,  ap- 
points another  person  to  a  public  office,  or  permits 
another  person  to  exercise  or  discharge  any  of  the 
duties  of  his  ofhct^  is  punishable  by  a  fine  not  ex- 
ceeding five  thousand  dollars,  and,  in  addition 
thereto,  forfeits  his  office,  and  is  forever  disqualified 
from  holding  any  office  in  this  state."  (California. 
Pen.  Code,  sec.  74.) 

§  20.  Office  hours.  Section  41 16  of  the  Political 
Code  provides:  "Sheriffs,  clerks,  recorders,  treas- 
urers, and  auditors  must  have  their  offices  at  the 
county  seat,  in  the  courthouse,  hall  of  records,  jail 
or  other  buildings,  provided  by  the  county  through 
the  board  of  supervisors,   and  keep  them  open  for 


§§21-23         SHERIFFS  AND  CONSTABLES.  l8 

the  transaction  of  business  continuously  from  nine 
o'clock  A.  M.  until  five  o'clock  P.  M.  every  day  in  the 
year  except  Sundays  and  holidays";  and  such  officers 
must  make  an  affidavit  to  the  auditor  that  such  re- 
quirement has  been  complied  with,  and  false  affidavit 
is  punishable  as  perjury.  {California.  Comity 
Govt.  Bill,  .sees.  63,  66;  Stats.  1907,  p.  556;  also,  Pol. 
Code,  sees.  41 16,  41 19.) 

§  21.  Saturday  half -holiday.  "Every  Saturday 
from  twelve  o'clock  noon  until  twelve  o'clock  mid- 
night is  a  holiday  as  regards  the  transaction  of  busi- 
ness in  the  public  offices  of  this  state,  and  also  in 
political  divisions  thereof  where  laws,  ordinances,  or 
charters  provide  that  public  offices  may  be  closed 
on  holidays;  provided,  this  shall  not  be  construed  to 
prevent  or  invalidate  the  issuance,  filing,  service,  ex- 
ecution, or  recording  of  any  legal  process  or  written 
instrument  whatever  on  such  Saturday  afternoons." 
{California.  Pol.  Code,  sec.  10,  amended  March 
10,  1905.) 

§  22.  Records  open  to  inspection.  The  public 
records  and  other  matters  in  the  office  of  the  sheriff 
are  at  all  times,  during  office  hours,  to  be  open  to 
the  inspection  of  any  citizen  of  the  state.  {Califor- 
nia.    Pol.  Code,  sec.  1032.) 

§23.    General  duties.     "The  sheriff  must: — 

"i.   Preserve  the  peace. 

"2.  Arrest  and  take  before  the  nearest  magistrate, 
for  examination,  all  persons  who  attempt  to  commit 
or  who  have  committed  a  public  offense. 


19  GENERAL  REGULATIONS.  §  24 

"3.  Prevent  and  suppress  any  affrays,  breaches  of 
the  peace,  riots,  and  insurrections  which  may  come 
to  his  knowledge. 

"4.  Attend  all  superior  courts  held  within  his 
county  and  obey  all  lawful  orders  and  directions  of 
all  courts  held  within  his  county. 

"5.  Command  the  aid  of  as  many  male  inhabitants 
of  his  county  as  he  may  think  necessary  in  the  exe- 
cution of  these  duties. 

"6.  Take  charge  of  and  keep  the  county  jail  and 
the  prisoners  therein. 

"7.  Release  on  the  record  all  attachments  of  real 
property  when  the  attachment  placed  in  his  hand 
has  been  released  or  discharged. 

"8.  Indorse  upon  all  process  and  notices  the  year, 
month,  day,  hour,  and  minute  of  reception,  and  issue 
therefor  to  the  person  delivering  it,  on  payment  of 
fees,  a  certificate  showing  the  names  of  the  parties, 
title  of  paper,  and  time  when  received. 

"9.  Serve  all  process  and  notices  in  the  manner 
prescribed  by  law. 

"10.  Certify  under  his  hand  upon  process  or  no- 
tices the  manner  and  time  of  service,  or,  if  he  fails 
to  make  service,  the  reasons  of  his  failure,  and  return 
the  same  without  delay."  (California.  County 
Govt.  Bill,  sec.  93;  Stats.  1907,  p.  401.) 

§  24.  Process  and  notice  defined.  "Process"  in- 
cludes all  writs,  warrants,  summons,  and  orders  of 
courts  of  justice,  or  judicial  officers.  "Notice"  in- 
cludes all  papers  and  orders  (except  process)  re- 
quired to  be  serA^ed  in  any  proceeding  before  any 
court,  board,  or  officer,  or  when  required  by  law  to 


§§  25,  26        SHERIFFS  AND  CONSTABLES.  20 

be  served  independently  of  such  proceeding.  (Cali- 
fornia. County  Govt.  Bill,  sec.  92;  Stats.  1893,  p. 
371  ;  also,  Pol.  Code,  sec.  4175.) 

§  25.     Resistance   to   process  —  Posse   comitatus. 

"When  a  sheriff,  or  other  public  officer  authorized 
to  execute  process,  finds,  or  has  reason  to  apprehend 
that  resistance  will  be  made  to  the  execution  of  the 
process,  he  may  command  as  many  male  inhabitants 
of  his  county  as  he  may  think  proper  to  assist  him 
in  overcoming  the  resistance,  and,  if  necessary,  in 
seizing,  arresting,  and  confining  the  persons  resist- 
ing, their  aiders  and  abettors.  The  officer  must  cer- 
tify to  the  court  from  which  the  process  issued  the 
names  of  the  persons  resisting,  that  they  may  be  pro- 
ceeded against  in  due  time  for  their  contempt  of 
court.  If  it  appears  to  the  governor  that  the  civil 
power  of  any  county  is  not  sufficient  to  enable  the 
sheriff  to  execute  process  delivered  to  him,  he  m.ust, 
upon  the  application  of  such  sheriff,  order  such  por- 
tion as  shall  be  sufficient,  or  the  whole,  if  necessary, 
of  the  organized  national  guard  or  enrolled  militia 
of  the  state,  to  proceed  to  the  assistance  of  the 
sheriff."      (California.     Pen.   Code,  sees,  jiyjiz^.) 

§  26.  Sheriff  to  act  as  court  bailiff.  The  sheriff, 
in  attendance  upon  court,  must  act  as  the  crier 
thereof,  call  the  parties  and  witnesses,  and  all  other 
persons  bound  to  appear  at  the  court,  and  make  proc- 
lamation of  the  opening  and  adjournment  of  the 
court,  and  of  any  other  matter  under  its  direction. 
(California.  County  Govt.  Rill,  sec.  \o6;  Stafs.  1907, 
/>.  403.) 


21  GENERAL  REGULATIONS.  §§27-29 

§  27.  Summoning  jurors.  Jurors  for  courts  of 
record  are  summoned  by  the  sherifif  "by  giving  per- 
sonal notice  to  that  effect  to  each  of  them,  or  by  leav- 
ing a  written  notice  to  that  effect  at  his  place  of 
residence,  with  some  person  of  proper  age."  {Cali- 
fornia.    Code  Civ.  Proc,  sec.  225.) 

§  28.    Summons  to  jurors  by  mail  not  good.     In 

People  V.  Burgess,  153  N.  Y.  561,  47  N.  E.  889,  the 
sheriff  had  summoned  the  jurors  drawn,  by  mailing 
a  notice  thereof  to  them,  inclosing  a  card  to  be  signed 
and  returned,  admitting  service  of  the  notice.  "It 
is  very  clear,"  said  the  court,  "that  the  sheriff  did 
not  conform  to  these  provisions  in  notifying  the  per- 
sons who  had  been  drawn  as  jurors  to  attend  at  that 
term  of  court.  Instead  of  following  this  form  of 
service  provided  by  the  statute,  he  adopted  another 
form  of  his  own  device,  which  the  statute  did  not 
recognize,  and  which  left  the  court  without  the 
power  to  compel  the  attendance  of  a  single  juror. 
But  we  are  inclined  to  the  view  that  in  this  case  no 
harm  was  done,  for  the  reason  that  all  of  the  jurors 
drawn,  who  were  qualified  to  sit,  personally  appeared 
in  court  at  the  time  appointed." 

§  29.  Misconduct  of  jurors.  One  of  the  grounds 
upon  which  a  reversal  of  judgment  was  asked  for 
in  the  case  of  Feary  v.  Metropolitan  St.  Ry.  Co., 
162  Mo.  75,  62  S.  W.  452,  was  because  of  alleged 
misconduct  of  a  juror,  and  the  court  found  it  no 
reversible  error,  as  follows:  "Because  the  jury  mis- 
behaved, in  that  some  of  the  members  of  the  same 
played  cards  with  one  of  defendant's  attorneys  dur- 
ing the  progress  of  the  trial,  Vvx  would  not  be  pre- 


§  29  SHERIFFS  AND  CONSTx\BLES.  22 

pared  to  agree  with  the  argument  that  a  judgment 
should  be  reversed  because  a  trial  judge  played  a 
game  of  cards  during  adjournment  with  an  attorney 
who  was  interested  in  a  case  on  trial  before  the  court, 
and  the  same  principle  applies  to  a  juror.  Lawyers 
and  jurors  generally  reside  in  the  same  bailiwick, 
are  acquainted  with  each  other,  meet  frequently  dur- 
ing the  term  of  court,  sometimes  eat  and  sleep  in  the 
same  tavern.  The  trial  judge  often  does  the  same, 
and  sometimes  he  is  the  guest  of  an  attorney  who  has 
cases  before  the  court.  But  it  never  occurred  to 
them,  perhaps,  that  they  were  thereby  laying  the 
foundation  for  a  reversal  of  their  cases.  It  takes 
something  more — some  corrupt  act,  or  act  strongly 
pointing  to  positive  turpitude,  to  upset  a  verdict  for 
misconduct." 

When  a  jury  retires  to  deliberate  upon  a  verdict 
"an  officer  must  be  sworn  to  keep  them  together  in 
some  private  and  convenient  place,  and  not  to  permit 
any  person  to  speak  to  or  communicate  with  them, 
nor  to  do  so  himself,  unless  by  order  of  the  court, 
or  to  ask  them  whether  they  have  agreed  upon  a 
verdict,  and  to  return  them  into  court  when  they 
have  so  agreed,  or  when  ordered  by  the  court." 
{California.    Pen.  Code,  sec.  1128.) 

Verdicts  are  not  infrequently  attacked  and  some- 
times set  aside  through  the  culpable  conduct  of  of- 
ficers in  charge  of  juries.  In  State  v.  La  Grange,  99 
Iowa,  10,  68  N.  W.  Rep.  557,  the  court  animadvert- 
ing upon  the  misconduct  of  a  bailiff  and  jury,  said  : — 

"But  in  this  case  the  jury  was  guilty  of  misconduct 
in  asking  of  the  bailifif  information  he  was  forbidden 
to  communicate,  and  in  permitting  him  to  give  it, 
and  to  advise  the  jury,  and  to  repeat  remarks  in  re- 


23  GENERAL  REGULATIONS.  §  29 

gard  to  the  case  made  by  the  trial  judge.  The  bailiff 
was  guilty  of  misconduct  in  talking  with  the  jury, 
excepting  to  ascertain  if  it  had  agreed  upon  a  verdict, 
and  what  he  said  was  of  a  nature  to  unduly  influence 
an  agreement.  It  was  the  right  of  the  defendant  to 
have  a  verdict  which  should  be  the  result  of  the 
deliberation  of  the  jury,  controlled  alone  by  evidence 
and  the  charge  given  by  the  court,  unaffected  by 
unauthorized  statements  of  the  views  of  the  judge, 
or  his  intentions  in  regard  to  keeping  the  jurors  to- 
gether." In  Cole  r.  Swan,  4  G.  Greene,  32,  it  was 
said:  "Officers  having  a  jury  in  charge  while  they 
are  deliberating  upon  their  verdict  should  never 
speak  to  them,  except  to  ask  them  whether  they  have 
agreed.  Any  conversation  by  the  officer  ought  to 
subject  him  to  severe  punishment  by  the  court,  and 
any  verdict  returned  after  such  conversation,  whether 
it  had  any  influence  or  not  in  producing  the  verdict, 
ought  to  be  set  aside  the  moment  the  fact  comes  to 
the  knowledge  of  the  court." 

Where  the  bailiff  remained  with  the  jury  in  the 
jury-room  all  night,  while  they  were  considering  the 
case  and  deliberating  upon  their  verdict,  talked  with 
different  jurors,  answered  questions  concerning  the 
case,  and,  when  one  juror  declined  to  vote  until  fur- 
ther consideration,  threatened  to  report  him  to  the 
court,  and  have  him  fined,  it  was  such  misconduct  of 
the  bailiff  as  to  vitiate  the  verdict.  {JVeston  v. 
Neathanuner,  180///.  150,  54  A^.  E.  Rep.  310.) 

Where,  while  a  jury  was  considering  a  case,  the 
sheriff  called  to  the  baliff  having  them  in  charge 
that  the  judge  would  leave  for  his  home  in  a  few 
minutes,  and,  unless  they  returned  a  verdict  at  once, 
they  would  be  held  until  another  day,  such  conduct 


§§3^5  3  f         SHERIFFS  AND   CONSTABLES.  2± 

was  ground  for  reversal,  the  action  of  the  sheriff 
being  presumed  prejudicial.  (Sluiic  v.  State,  79 
Miss.  ^"^  31  South.  209.) 

§  30.  Care  of  jury.  Defendant  J.  S.  Wormly  was 
convicted  of  the  murder  of  Anthony  T.  Robion. 
He  moved  for  a  new  trial  on  the  ground  that  the 
verdict  Vv^as  not  warranted  by  the  evidence,  and  that 
there  was  great  misbehavior  on  the  part  of  the  sheriff 
and  the  jury — the  latter  being  permitted  to  converse 
and  drink  spirituous  liquors  with  several  persons  dur- 
ing the  absence  of  the  sheriff,  and  without  the  per- 
mission or  authority  of  the  court.  The  motion  was 
granted.  The  court  said:  "The  court  is  of  opinion 
that  the  conduct  of  the  sheriff  in  withdrawing  from 
the  jury  at  the  house  of  Mr.  Cheatham,  and  leaving 
them  in  the  parlor  in  company  with  three  other 
gentlemen,  as  is  set  forth  in  the  record,  was  sufficient 
to  vitiate  the  verdict  of  the  jury.  The  court  deems  it 
proper  to  add,  that  the  conduct  of  the  sheriff  in  con- 
ducting the  jury  to  the  house  of  Mr.  Cheatham,  and 
withdrawing  from  them  under  the  circumstances  dis- 
closed by  the  evidence,  was  such  misbehavior  on  the 
part  of  that  officer  as  to  deserve  the  animadversion 
and  censure  of  the  court.  The  act  should  be  con- 
demned, because  its  tendency  is  to  impair  the  purity 
of  the  trial  by  jury  in  criminal  cases." 

Jurors  conversing  with  parties  while  the  case  is 
under  consideration  by  them  will  be  good  ground 
for  a  new  trial.  (Nehns  v.  State,  13  Smedes  &  M. 
500,  53  Am.  Dec.  94.) 

§31.    Diligence   required   in   service   of   process. 

The  supreme  court  of  California  has  declared,   in 


-:? 


GENERAL   REGULATIONS.  §  3  I 


the  case  of  Whitney  v.  Butterfield,  13  Cal.  336,  73 
Am.  Dec.  584,  that  in  the  service  of  process  the 
sheriff  is  responsible  only  for  unreasonably,  or  not 
reasonably,  executing  it;  that  he  is  not  bound  to  start 
on  the  instant  of  receiving  a  writ  to  execute  it,  with- 
out regard  to  anything  else. 

"The  sheriff's  liability  rests  on  his  breach  of  official 
duty.  As  he  is  bound  to  perform  his  duty,  so  is  h.e 
responsible  to  every  one  who  may  be  injured  by  his 
failure  to  discharge  it.  In  respect  to  the  execution 
of  process,  these  official  duties  are  well  defined  by 
law.  The  law  is  reasonable  in  this,  as  in  all  other 
things.  It  holds  public  officers  to  a  strict  perform- 
ance of  their  respective  duties.  It  tolerates  no  wan- 
ton disregard  of  these  duties.  It  sanctions  no  negli- 
gence; but  it  requires  no  impossibilities  and  im.poses 
no  unconscionable  exactions.  When  process  of  at- 
tachment or  execution  com.es  to  the  hands  of  the 
sheriff',  he  must  obey  the  exigency  of  the  writ.  He 
must,  in  such  cases,  execute  the  writ  with  all  reason- 
able celerity.  Whenever  he  can  make  the  money  on 
execution,  or  secure  the  debt  by  attachment,  he  must 
do  it.  But  he  is  not  held  to  the  duty  of  starting  on 
the  instant  after  receiving  a  writ,  to  execute  it,  Vv^ith- 
out  regard  to  anything  else  than  its  instant  execution. 
Reasonable  diligence  is  all  that  is  required  of  him 
in  such  instances.  But  this  reasonable  diligence  de- 
pends  upon  the  particular  facts  in  connection  with 
the  duty.  If,  for  example,  a  sheriff  has  execution 
against  A,  and  has  no  special  instruction  to  execute 
it  at  once,  and  there  is  no  apparent  necessitv  for  its 
immediate  execution,  it  would  not  be  contended  that 
he  was  under  the  same  obligations  to  execute  it  in- 
stantaneously as  if  he  were  so  instructed  and  there 


§31  SHERIFFS  AND  CONSTABLES.  26 

were  circumstances  of  urgency.  So  in  respect  to  an 
attachment.  If  an  attachment  were  sued  out  on  the 
ground  of  a  defendant's  fraud,  or  his  being  in  the 
act  of  leaving  the  state,  or  removing  his  property, 
the  very  fact  of  the  issuance  of  the  attachment,  or 
the  making  of  the  affidavit,  w^ould  seem  to  indicate 
to  the  officer  the  necessity  of  immediate  action.  But 
generally,  in  the  absence  of  special  circumstances, 
an  attachment  issued  for  the  security  of  a  debt,  under 
the  old  statute  authorizing  such  a  process,  does  not 
stand  upon  a  more  favorable  footing,  so  far  as  regards 
the  necessity  of  immediate  service,  than  an  execution. 
"It  is  true  the  statute  (Wood's  Dig.  183,  sec.  125) 
directs  that  the  sheriff  'shall  execute  the  WTit  of 
attachment  without  delay';  but  this  was  not  intended 
to  introduce  a  new  rule.  The  expression  'without 
delay'  does  not  mean  that  the  sherifif  shall,  the  in- 
stant he  receives  process  of  this  sort,  lay  aside  all 
other  business  and  proceed  to  execute  it,  unless  some 
special  reasons  of  urgency  exist.  The  rule  is  thus 
stated  by  the  supreme  court  of  New  York  in  Hin- 
man  v.  Borden,  10  Wend.  367,  25  Am.  Dec.  545: 
'A  sheriff  is  bound  to  use  all  reasonable  endeavors 
to  execute  process.'  It  is  true  that  some  authorities 
hold  the  rule  with  more  strictness.  In  Lindsay's  Ex- 
ecutors V.  Armfield,  3  Hawks  (N.  C),  548,  14  Am. 
Dec.  603,  the  sheriff  was  held  liable  for  not  levying 
from  7th  October  to  ist  November,  following — no 
explanation  being  offered  for  the  failure.  Mr. 
Justice  Hall  says  'the  law  declares  it  to  be  the 
duty  of  the  sheriff  to  execute  all  process  which  comes 
to  his  hands,  with  the  utmost  expedition,  or  as  soon 
after  it  comes  into  his  hands  as  the  nature  of  the  case 
admits,'  and  cites  Bacon  Abridg.  Sheriff  N.     That 


27  GENERAL  REGULATIONS.  §  32 

author  holds  the  doctrine  in  the  same  language  as 
that  quoted.  Mr.  Justice  Henderson,  in  the  case  in 
Hawks,  states  the  doctrine  a  little  differently.  He 
says :  'The  sheriff  should  proceed  with  all  convenient 
speed  to  levy  the  execution.'  The  learned  American 
editor  of  Bacon  cites,  in  support  of  the  doctrine  of 
the  text,  several  cases,  which  we  have  examined. 
None  of  them  sustains  the  rule  in  its  strictness,  even 
if  we  are  to  regard  the  doctrine  of  Bacon  as  laying 
down  a  different  rule,  so  far  as  the  liability  of  the 
sheriff  is  concerned,  from  that  held  in  Wendell  and 
other  cases ;  for  Bacon  says  the  'sheriff  must  not  show 
any  favor,  nor  be  guilty  of  unreasonable  delayJ  In 
Kennedy  v.  Brent,  6  Cranch.  187,  3  L.  ed.  194, 
Marshall,  C.  J.,  holds  that  the  marshal  is  bound  to 
serve  the  process  as  soon  as  he  reasonably  can. 

"The  question  of  unreasonable  delay  is  a  mixed 
question  of  law  and  fact,  each  case  depending  on  its 
own  circumstances." 

§  32.  Liability  for  delay.  "If  a  sheriff  does  not 
return  a  process  or  notice  in  his  possession,  with  the 
necessary  indorsement  thereon,  without  delay,  he  is 
liable  to  the  party  aggrieved  for  the  sum  of  two 
hundred  dollars,  and  for  all  damages  sustained  by 
him. 

"If  the  sheriff,  to  whom  a  writ  of  execution  is  de- 
livered, neglects  or  refuses,  after  being  required  by 
the  creditor  or  his  attorney,  the  fees  having  first  been 
paid  or  tendered,  to  levy  upon  or  sell  any  property 
of  the  party  charged  in  the  writ,  which  is  liable  to 
be  levied  upon  and  sold,  he  is  liable  to  the  creditor 
for  the  value  of  such  property."  (California. 
County  Govt.  Bill,  sees.  96,  97;  Pol.  Code,  sees.  4179, 
4180.) 


§§  33-3^         SHERIFFS  AND  CONSTABLES.  28 

^23-    Specially  conferred  powers  and  duties.     In 

addition  to  the  general  duties  of  the  slieriff  as  pre- 
scribed by  the  general  statutes  relating  to  the  office, 
he  has  such  other  powers  and  duties  as  may  be  im- 
posed upon  him  by  any  other  statutes,  in  the  execu- 
tion of  which  his  services  may  be  required.  It  is 
sometimes  enacted  into  a  code  or  statutory  provision 
that  "the  sheriff  must  perform  such  other  duties  as 
are  required  of  him  by  law."  [California.  Stats. 
1893,  P-  374;  P^'f-  Code,  sec.  4193.) 

§  34.  Attendance  upon  supervisors.  The  board 
of  supervisors  shall  have  power  to  direct  the  sheriff 
to  attend,  in  person  or  by  deputy,  all  the  meet- 
ings of  the  board,  to  preserve  order,  serve  notices, 
subpoenas,  citations,  or  other  process,  as  directed  by 
the  board.  {California.  County  Govt.  Bill,  sees. 
27,  29;  Stats.  1893,  P-  3605  P^^^-  Code,  sec.  4047.) 

§  35.  Process  of  court-martial.  "Every  sheriff 
and  constable  must  serve  all  orders,  subpoenas,  or 
process  delivered  to  him  for  that  purpose  by  any 
member  of  a  court-martial."  [California.  Pol. 
Code,  sec.  2084.) 

§  36.  Duties  as  to  wrecks.  "The  sheriff  in  each 
county  must  give  all  possible  aid  and  assistance  to  ves- 
sels stranded  on  its  coast,  and  to  the  persons  on  board 
the  same,  and  exert  himself  to  save  and  preserve  such 
persons,  vessels,  and  their  cargoes,  and  all  goods  and 
merchandise  which  may  be  cast  by  the  sea  upon  the 
land,  and  to  this  end  may  employ  as  many  persons  as 
he  may  think  proper.  All  citizens  must  aid  the  sheriff 
when  required. 


29  GENE11.AL  REGULATIONS.  §§  37,  38 

"The  sheriff  of  every  county  in  which  any  wrecked 
property  is  found,  when  no  owner  or  other  person 
entitled  to  possession  appears,  must  take  possession 
of  it  in  the  name  of  the  people,  cause  the  value  thereof 
to  be  appraised  by  disinterested  persons,  and  keep  it 
in  some  safe  place  to  answer  the  owner's  claims,"  and 
dispose  of  it  only  in  the  manner  provided  by  law. 
{California.     Pol.  Code,  sees.  2403,  2406-2418.) 

§  37.    Removal  of  intruders  on  state  v/aste  lands. 

"If  any  person,  under  any  pretense  of  any  claim  in- 
consistent with  the  sovereignty  and  jurisdiction  of 
the  state,  intrudes  upon  any  of  the  waste  or  ungranted 
lands  of  the  state,  the  district  attorney  of  the  county 
must  immediately  report  the  same  to  the  governor, 
who  must  thereupon,  by  a  written  order,  direct  the 
sheriff  of  the  county  to  remove  the  intruder;  and  if 
resistance  to  the  execution  of  the  order  is  made  or 
threatened,  the  sheriff  may  call  to  his  aid  the  powxr 
of  the  county,  as  in  cases  of  resistance  to  the  WTits  of 
the  people."     (California.    Pol.  Code,  sec.  .1^2.) 

§  38.    To  provide  rooms  for  courts  and  judges — 

When,  if  suitable  rooms  for  holding  the  superior 
courts,  and  the  chambers  of  the  judges  of  said  courts, 
are  not  provided  in  any  county  by  the  supervisors 
thereof,  together  with  attendants,  furniture,  fuel, 
lights,  and  stationery  sufficient  for  the  transaction  of 
business,  the  courts  or  the  judge  or  judges  thereof 
may  direct  the  sheriff"  of  the  county  to  provide  such 
rooms,  attendants,  furniture,  fuel,  lights,  and  station- 
ery, and  the  expenses  thereof  are  a  charge  against 
such  county,  (California.  Code  Civ.  Proc,  sec. 
144;  Stats.  1907,  p.  680.) 


§§  39-42         SHERIFFS  AND  CONSTABLES.  30 

Under  this  statute,  the  court  can  only  require  the 
sheriff  to  provide  such  quarters  as  the  court  "pres- 
ently requires  for  the  transaction  of  its  business,"  and 
cannot  interfere  with  a  contract  for  a  courthouse  in 
course  of  erection.  (Los  Angeles  County  v.  Supe- 
rior Court,  93  Cal.  380,  28  Pac.  1062.) 

§  39.  Sheriff  as  auctioneer.  "In  any  city  or 
town  where  there  is  no  auctioneer,  the  sheriff  or  a 
constable  thereof  is  ex  officio  auctioneer,  and  is  per- 
mitted to  sell  any  property,  real  or  personal,  at  public 
auction;  and  for  any  delinquency  as  such  ex  officio 
auctioneer  he  is  liable  on  his  official  bond."  (Cali- 
fornia.   Pol.  Code,  sec.  3291.) 

§  40.  Prevention  of  offenses.  It  is  the  duty  of 
the  sheriff  to  prevent  and  suppress  all  affrays,  breach- 
es of  the  peace,  riots,  and  insurrections  which  may 
come  to  his  knowledge,  and  to  arrest  and  take  before 
the  nearest  magistrate,  for  examination,  all  persons 
who  attempt  to  commit  or  who  have  committed  a 
public  offense.  (California.  County  Govt.  Bill,  sec. 
93;  Stats.  1893,  p.  372;  Pen.  Code,  sec.  697.) 

§41.  Prevention  of  duels.  If  the  sheriff  has 
knowledge  of  the  intention  on  the  part  of  any  per- 
sons to  fight  a  duel,  and  does  not  exert  his  official 
authority  to  arrest  the  party  and  prevent  the  duel, 
he  is  punishable  by  fine  not  exceeding  one  thousand 
dollars.     (California.    Pen.  Code,  sec.  230.) 

§  42.     Svippression    of    riots  —  Posse    comitatus. 

"When  any  number  of  persons,  whether  armed  or 
not,  are  unlawfully  or  riotously  assembled,  the  sheriff 


3 1  GENERAL  REGULATIONS.  §  42 

of  the  county  and  his  deputies,  the  officials  govern- 
ing the  town  or  city,  or  the  justices  of  the  peace  and 
constables  thereof,  or  any  of  them,  must  go  among 
the  persons  assembled,  or  as  near  to  them  as  possible, 
and  command  them,  in  the  name  of  the  people  of  the 
state,  immediately  to  disperse.  If  the  persons  as- 
sembled do  not  immediately  disperse,  such  magis- 
trate and  officers  must  arrest  them,  and  to  that  end 
may  command  the  aid  of  all  persons  present  or 
within  the  county.  When  there  is  an  unlawful  or 
riotous  assembly  with  the  intent  to  commit  a  felony, 
or  to  offer  violence  to  person  or  property,  or  to  re- 
sist by  force  the  laws  of  the  state,  or  of  the  United 
States,  and  the  fact  is  made  known  to  the  governor, 
or  to  any  justice  of  the  supreme  court,  or  to  the 
superior  judge  or  sheriff  of  the  county,  or  to  the 
mayor  of  a  city,  or  to  the  president  of  the  board  of 
supervisors  of  the  cities  and  counties  of  Sacramento 
and  San  Francisco,  either  of  those  officers  may  issue 
an  order  directed  to  the  commanding  officer  of  a 
division  or  brigade  of  the  organized  national  guard 
or  enrolled  militia  of  the  state,  to  order  his  command, 
or  such  part  thereof  as  may  be  necessary,  into  active 
service,  and  to  appear  at  a  time  and  place  therein 
specified  to  aid  the  civil  authorities  in  suppressing 
violence  and  enforcing  the  laws," — and  such  armed 
force  must  obey  the  orders  of  such  civil  officer  in 
relation  thereto.  "If  in  the  opinion  of  such  civil 
officer  it  shall  become  necessar\^  that  the  troops  shall 
fire  or  charge  upon  any  mob  or  body  of  persons  so 
assembled,  such  civil  officer  shall  give  a  written  order 
to  that  effect  to  the  superior  officer  present  in  com- 
mand of  such  troops,  who  will  at  once  proceed  to 
carry  out  the  order,  and  shall  direct  the  firing  and 


§  43  shp:riffs  and  constables.  32 

attack  to  cease  only  when  such  unlawful  assembly 
shall  have  been  dispersed,  or  when  ordered  to  do 
so  by  the  proper  civil  authority.  When  the  governor 
is  satisfied  that  the  execution  of  civil  or  criminal 
process  has  been  forcibly  resisted  in  any  county  by 
bodies  of  men,  or  that  combinations  to  resist  the 
execution  of  process  by  force  exist  in  any  county,  and 
that  the  powder  of  the  county  has  been  exerted  and 
has  not  been  sufficient  to  enable  the  officers  having 
the  process  to  execute  it,  he  may,  on  the  application 
of  the  officer,  or  of  the  district  attorney  or  county 
judge  of  the  county,  by  proclamation  published  in 
such  papers  as  he  may  direct,  declare  the  county  to 
be  in  a  state  of  insurrection,  and  may  order  into  the 
service  of  the  state  such  number  and  description  of 
the  organized  national  guard  or  volunteer  uniformed 
companies,  or  other  militia  of  the  state,  as  he  deems 
necessary,  to  serve  for  such  term  and  under  the  com- 
mand of  such  officer  as  he  may  direct."  Any  person 
who,  after  tlie  publication  of  such  proclamation,  re- 
sists or  aids  in  resisting  the  execution  of  process  in 
any  county  declared  to  be  in  a  state  of  insurrection, 
or  who  aids  or  attempts  the  rescue  or  escape  of  an- 
other from  lawful  custody  or  confinement,  or  who 
resists  or  aids  in  resisting  any  force  ordered  out  by 
the  governor  to  quell  or  suppress  an  insurrection, 
is  punishable  by  imprisonment  in  the  state  prison 
not  less  than  two  years.  [California.  Pen.  Code, 
sees.  411,  726-732.) 

§  43.    Remaining  at  place  of  riot  after  warning. 

"Every  person  remaining  present  at  the  place  of  any 
riot,  rout,  or  unlawful  assembly,  after  the  same  has 
been  lawfully  warned  to  disperse,  except  public  offi- 


22  GENERAL  REGULATIONS.  §§  44-46 

cers  and  persons  assisting  them  in  attempting  to 
disperse  the  same,  is  guilty  of  a  misdemeanor." 
(California.    Pen.  Code,  sec.  409.) 

§  44.  Neglect  to  disperse  rioters.  "If  a  mag- 
istrate or  officer,  having  notice  of  an  unlawful  or 
riotous  assembly,  mentioned  in  this  chapter,  neglects 
to  proceed  to  the  place  of  assembly,  or  as  near 
thereto  as  he  can  with  safety,  and  to  exercise  the 
authority  with  which  he  is  invested  for  suppressing 
the  same  and  arresting  the  offenders,  he  is  guilty  of 
a  misdemeanor."     (California.    Pen.  Code,  sec.  :\.io.) 

§  45.  Prosecution  of  gamblers.  "Every  sherifif, 
district  attorney,  constable,  or  police  officer  must 
inform  against  and  diligently  prosecute  persons 
whom  they  have  reasonable  cause  to  believe  ofTfend- 
ers  against  the  provisions  of  the  Penal  Code  relative 
to  gambling;  and  every  such  officer  refusing  or  neg- 
lecting so  to  do,  is  guilty  of  a  misdemeanor."  (Cali- 
fornia.    Pen.  Code,  sec.  335.) 

§  46.  Officer  must  not  act  as  attorney.  SherifTs 
and  their  deputies  are  prohibited  from  practicing 
law,  or  acting  as  attorneys  or  counselors  at  law,  in 
the  counties  where  they  reside  and  hold  office,  or 
from  having  as  a  partner  a  lawyer,  or  any  one  who 
acts  as  such.  (California.  County  Govt.  Bill,  sec. 
68;  Stats.  1893,  P'  3^85  P^^'  Code,  sec.  4121.)  Nor 
is  it  lawful  for  the  sherifif  or  any  of  his  deputies  of 
the  city  and  county  of  San  Francisco  to  appear  or 
advocate,  or  in  any  manner  act  as  attorney,  counsel, 
or  agent  for  any  party  or  person  in  any  cause,  or  in 
relation  to  any  demand,  account,  or  claim  pending, 


§§  47-49  SHERIFFS  AND  CONSTABLES.  34 

or  to  be  sued  or  prosecuted  before  the  justices  of  the 
peace  of  that  city  and  county,  or  any  of  them,  or 
which  may  be  within  their  jurisdiction;  and  a  vio- 
lation of  this  provision  shall  be  deemed  a  misde- 
meanor in  office. 

§  47.  May  administer  oaths.  71ie  sheriff  and 
his  deputies  may  administer  and  certify  oaths. 
[California.  County  Govt.  Bill,  sec.  6^',  Pol.  Code, 
sec.  41 18.)  As  this  statutory  power  is  conferred 
without  restriction,  the  exercise  of  the  power  would 
seem  to  be  not  limited  to  matters  otherwise  coming 
within  the  line  of  his  official  business.  (Pffcijfer  v. 
Riehn,  13  Cal.  648.) 

§  48.    Payment    of    moneys    to    treasurer.      The 

sheriff  must  pay  into  the  county  treasury,  on  the 
first  Monday  in  each  month,  the  fees  allowed  by 
law  in  all  cases,  except  such  fees  as  are  a  charge 
against  the  county,  and  must  accompany  the  same  by 
a  statement  of  the  aggregate  amount  thereof,  as 
shown  by  the  fee  book,  duly  verified  by  the  officer 
by  his  affidavit  in  the  form  prescribed  by  law.  (Cali- 
fornia. County  Govt.  Bill,  sees.  217,  219;  Stats. 
^^93,  PP-  508,  509.) 

§  49.    Sheriff  to  give  dead  bodies  to  physicians. 

"The  sheriff  or  keeper  of  a  county  jail  must  surren- 
der the  dead  bodies  of  such  persons  as  are  required 
to  be  buried  at  the  public  expense  to  any  physician 
or  surgeon,  to  be  by  him  used  for  the  advancement 
of  anatomical  science,  preference  being  always  given 
to  medical  schools  by  law  established  in  this  state, 
for  their  use  to  the  instruction  of  medical  students. 


35  GENERAL   REGULATIONS.  §§50,51 

But  if  such  person  during  his  last  sickness  requested 
to  be  buried,  or  if,  within  twenty-four  hours  after 
his  death,  some  person  claiming  to  be  of  kindred  or 
a  friend  of  the  deceased  requires  the  body  to  be 
buried,  or  if  such  deceased  person  was  a  stranger  or 
traveler  who  suddenly  died  before  making  himself 
known,  such  dead  body  must  be  buried  without  dis- 
section." (California.  Pol.  Code,  sec.  3094;  Stats. 
1907,  p.  835.) 

§  50.  Food  and  lodging  for  juries.  While  a 
jury  are  kept  together,  either  during  the  progress 
of  the  trial  or  after  their  retirement,  for  deliberation, 
they  must  be  provided  by  the  sheriff,  at  the  expense 
of  the  county,  with  suitable  and  sufficient  food  and 
lodging.     (California.    Pen.  Code,  sec.  1136.) 

§51.    Embezzlement  and  falsification  of  accounts. 

"Every  officer  of  this  state,  or  of  any  county,  city, 
town,  or  district  of  this  state,  and  every  other  person 
charged  with  the  receipt,  safe  keeping,  transfer,  or 
disbursement  of  public  moneys,  who  either: 

"i.  Without  authority  of  law  appropriates  the 
same  or  any  portion  thereof  to  his  own  use,  or  to  the 
use  of  another;  or, 

"2.  Loans  the  same  or  any  portion  thereof;  or, 

"3.  Fails  to  keep  the  same  in  his  possession  until 
disbursed  or  paid  out  by  authority  of  law;  or, 

"4.  Unlawfully  deposits  the  same  or  any  portion 
thereof  in  any  bank,  or  with  any  banker  or  other 
person ;  or, 

"5.  Changes  or  converts  any  portion  thereof  from 
coin  into  currency  or  from  currency  into  coin  or 
other  currency,  without  authority  of  law;  or, 


§  52  SHERIFFS  AND  CONSTABLES.  36 

"6.  Knowingly  keeps  any  false  account,  or  makes 
any  false  entry  or  erasure  in  any  account  of  or  re- 
lating to  the  same;  or, 

"7.  Fraudulently  alters,  falsifies,  conceals,  de- 
stroys, or  obliterates  any  such  account;  or, 

"8.  Willfully  refuses  or  omits  to  pay  over,  on  de- 
mand, any  public  moneys  in  his  hands,  upon  the 
presentation  of  a  draft,  order,  or  warrant  drawn 
upon  such  moneys  by  competent  authority;  or, 

"9.  Willfully  omits  to  transfer  the  same,  when 
such  transfer  is  required  by  law;  or, 

"10.  Willfully  omits  or  refuses  to  pay  over  to  any 
officer  or  person  authorized  by  law  to  receive  the 
same,  any  money  received  by  him  under  any  duty 
imposed  by  law  so  to  pay  over  the  same : 
— Is  punishable  by  imprisonment  in  the  state  prison 
for  not  less  than  one  nor  more  than  ten  years,  and  is 
disqualified  from  holding  any  office  in  this  state." 
{California.     Pen.  Code,  sec.  424.) 

§  52.     Larceny,     mutilation,     or    destruction     of 

records.  "Every  officer  having  the  custody  of  any 
record,  map,  or  book,  or  of  any  paper  or  proceeding 
of  any  court,  filed  or  deposited  in  any  public  office, 
or  placed  in  his  hands  for  any  purpose,  who  is 
guilty  of  stealing,  willfully  destroying,  mutilating, 
defacing,  altering  or  falsifying,  removing  or  secret- 
ing the  whole  or  any  part  of  such  record,  map,  book, 
paper,  or  proceeding,  or  who  permits  any  other  per- 
son so  to  do,  is  punishable  by  imprisonment  in  the 
state  prison  not  less  than  one  nor  more  than  fourteen 
years."     (California.    Pen.  Code,  sec.  113.) 


37  GENERAL  REGULATIONS.  §§  53-56 

§  53.  Breach  or  omission  of  duty.  For  every 
failure  or  refusal  to  perform  official  duty  when  the 
fees  are  tendered,  he  the  sheriff  is  liable  on  his  offi- 
cial bond.  (California.  County  Govt.  Bill,  sec.  223  ; 
Stats.  1893,  p.  510.)  "Every  willful  omission  to  per- 
form any  duty  enjoined  by  law  upon  any  public  offi- 
cer, or  person  holding  any  public  trust  or  employ- 
ment, where  no  special  provision  shall  have  been 
made  for  the  punishment  of  such  delinquency,  is  pun- 
ishable as  a  misdemeanor."  [California.  Pen.  Code, 
sec.  176.)  In  Ex  parte  Harrold,  47  Cal.  129,  it  is 
declared  that  this  provision  does  not  apply  to  con- 
ditions or  qualifications  on  which  the  incumbent's 
right  to  hold  an  office  depends,  but  to  duties  pertain- 
ing to  the  office,  while  in  the  discharge  of  official 
duties. 

§  54.  False  certificates.  "Every  public  officer 
authorized  by  law  to  make  or  give  any  certificate  or 
other  writing,  who  makes  and  delivers  as  true  any 
such  certificate  or  writing,  containing  statements 
which  he  knows  to  be  false,  is  guilty  of  a  misde- 
meanor,"    {California.    Pen.  Code,  sec.  167.) 

§  55.  Assaults  by  officers.  "Every  public  offi- 
cer who,  under  color  of  authority,  without  lawful 
necessity,  assaults  or  beats  any  person,  is  punishable 
by  fine  not  exceeding  five  thousand  dollars,  and  im- 
prisonment in  the  county  jail  not  exceeding  five 
years."     {California.    Pen.  Code,  sec.  149.) 

§  56.  Sheriff's  badges.  The  boards  of  super- 
visors of  the  several  counties  of  this  state  must  fur- 
nish to  the  sherifif,  under  sheriffs,  and  deputy  sherifTfs 


§§  57-6o  SHERIFFS  AND   CONSTABLES.  38 

of  their  respective  counties,  a  suitable  badge  of 
office,  upon  which  shall  be  inscribed  the  words 
"sheriff"  and  "deputy  sheriff."  {California.  Stats. 
1875-1876,/).  803.) 

§  57.  Appointment  of  under  sheriff.  In  Cali- 
fornia "the  board  of  supervisors  may  allow  the 
sheriff  an  under  sheriff,  at  a  salary  to  be  fixed  by 
the  board,  not  to  exceed  two  hundred  dollars  per 
month,"  in  counties  of  the  second  class.  (California. 
County  Govt.  Bill,  sec.   164,  subd.   17;  Stats.   1893, 

P-  393- 

§  58.    Direction    to    sheriff   must   be    in    writing. 

"No  direction  or  authority  by  a  party  or  his  attor- 
ney to  a  sheriff,  in  respect  to  the  execution  of  process 
or  return  thereof,  or  to  any  act  or  omission  relating 
thereto,  is  available  to  discharge  or  excuse  the  sheriff 
from  a  liability  for  neglect  or  misconduct,  unless  it 
is  contained  in  a  v/riting,  signed  by  the  attorney  of 
the  party,  or  by  the  party,  if  he  has  no  attorney." 
[California.  County  Covt.  Bill,  sec.  102;  Stats. 
1893,  P-  272',  Pol.  Code,  sec.  4185.) 

§  59-    When  sheriff  justified  in  executing  process. 

"A  sheriff,  or  other  ministerial  officer,  is  justified 
in  the  execution  of  and  must  execute  all  process  and 
orders  regular  on  their  face  and  issued  by  competent 
authority,  whatever  may  be  the  defect  in  the  pro- 
ceedings upon  which  they  were  issued."  (Califor- 
nia. County  Covt.  Bill,  sec.  104;  Stats.  1893,  p.  373; 
Pol.  Code,  sec.  4187.) 

§  60.  Officer  to  exhibit  process.  "The  officer 
executing  process  must  then,  and  at  all  times  sub- 


39  GENERAL  REGULATIONS.  §§61-64 

sequent,  so  long  as  he  retains  it,  upon  request  show 
the  same,  with  all  papers  attached,  to  any  person 
interested  therein."  (Calif ornia.  County  Govt.  Bill, 
sec.  105;  S frits.  1893,  p.  373;  Pol.  Code,  sec.  4188.) 

§  61.  Service  on  sheriff,  how  made.  "Service  of 
a  paper,  other  than  process,  upon  the  sherifif  may  be 
made  by  delivering  it  to  him  or  to  one  of  his  depu- 
ties, or  to  a  person  in  charge  of  the  office  during 
office  hours,  or  if  no  such  person  is  there,  by  leaving 
it  in  a  conspicuous  place  in  the  office."  (California. 
County  Govt.  Bill,  sec.  107;  Stats.  1893,  p.  273',  Pol- 
Code,  sec.  4190.) 

§  62.    Return   of   process   from   another   county. 

"When  process  or  notices  are  returnable  to  another 
county,  he  [the  sheriff]  may  inclose  such  process  or 
notice  in  an  envelope,  addressed  to  the  officer  from 
whom  the  same  emanated,  and  deposit  it  in  the  post- 
office,  prepaying  postage."  (California.  County 
Govt.  Bill,  sec.  94;  Stats.  1893,  p.  372;  Pol.  Code, 
sec.  4177.) 

§  63.  Return  prima  facie  evidence.  "The  re- 
turn of  the  sheriff  upon  process  or  notices  is  prima 
facie  evidence  of  the  facts  in  such  return  stated." 
(California.  County  Govt.  Bill,  sec.  95;  Stats.  1893, 
p.  372;  Pol.  Code,  sec.  4178.) 

§  64.    Penalty  for  non-return  of  process,  etc.    "If 

the  sheriff  does  not  return  a  notice  or  process  in  his 
possession  with  the  necessary  indorsement  thereon 
without  delay,  he  is  liable  to  the  party  aggrieved  for 
the  sum  of  two  hundred  dollars  and  for  all  damages 


J 


§§  65,  66         SHERIFFS  AND  CONSTABLES.  40 

sustained  bv  him."     {California.    County  Govt.  Bill, 
sec.  96;  Stats.  1893,  p.  372;  Pol.  Code,  sec.  4179.) 

§  65.  Liable  for  refusing  to  levy.  "If  the  sheriff 
to  whom  a  writ  of  execution  is  delivered  neglects 
or  refuses,  after  being  required  by  the  creditor  or 
his  attorney,  to  levy  upon  or  sell  any  property  of 
the  party  charged  in  the  writ  which  is  liable  to  be 
levied  upon  and  sold,  he  is  liable  to  the  creditor  for 
the  value  of  such  property."  (California.  County 
Govt.  Bill,  sec.  97;  Stats.  1893,  p.  372;  Pol.  Code, 
sec.  4180.) 

§  66.  Neglect  or  refusal  of  sheriff  to  pay  over 
moneys.  "If  he  neglects  or  refuses  to  pay  over  on  de- 
mand, to  the  person  entitled  thereto,  any  money  which 
may  come  into  his  hands  by  virtue  of  his  office  (after 
deducting  his  legal  fees),  the  amount  thereof,  with 
twenty-five  per  cent  damages  and  interest  at  the  rate 
of  ten  per  cent  per  month  from  the  time  of  demand, 
may  be  recovered  by  such  person."  (California. 
County  Govt.  Bill,  sec.  98;  Stats.  1893,  P-  37^  5  Pol. 
Code,  sec.  4181.) 

"If  any  clerk,  justice  of  the  peace,  sheriff,  or  con- 
stable, who  receives  any  fine  or  forfeiture,  refuses 
or  neglects  to  pay  over  the  same  according  to  law 
and  within  thirty  days  after  the  receipt  thereof,  he 
is  guilty  of  a  misdemeanor."  (California.  Pen. 
Code,  sec.  427.) 

"Every  officer  charged  with  the  receipt,  safe  keep- 
ing, or  disbursement  of  public  moneys,  who  neglects 
or  fails  to  keep  and  pay  over  the  same  in  the  man- 
ner prescribed  by  law,  is  guilty  of  felony."  (Cali- 
fornia.   Pen.  Code,  sec.  ^2^.    See,  also,  sec.  ^i^  ante.) 


41  GENERAL  REGULATIONS.  §§  67-69 

§  67.  Service  of  writs  by  telegraph.  In  Cali- 
fornia and  some  other  states  provision  is  made  by 
statute  for  the  transmission  of  writs  by  telegraph  for 
service,  in  which  case  the  service  and  return  are 
made  in  the  same  manner  as  if  the  original  were  to 
be  served. 

§  68.  Coroner  to  execute  process  when  sheriff 
a  party.  "When  the  sheriff  is  a  party  to  an  action 
or  proceeding,  the  process  and  orders  therein,  which 
it  would  otherwise  be  the  duty  of  the  sheriff  to  exe- 
cute, must  be  executed  by  the  coroner  of  the  county; 
provided,  w^hen  any  action  is  begun  against  the 
sheriff,  all  process  and  order  may  be  served  by  any 
person,  a  citizen  of  the  United  States,  over  the  age 
of  eighteen  years,  in  the  manner  provided  in  the 
Code  of  Civil  Procedure."  (California.  County 
Govt.  Bill,  sec.  108;  Stats.  1893,  p.  374.) 

§  69.  Elisors  to  act  in  cases  designated.  "Process 
and  orders  in  an  action  or  proceeding  may  be  exe- 
cuted by  a  person  residing  in  the  county,  designated 
by  the  court,  the  judge  thereof,  or  a  county  judge, 
and  denominated  an  elisor,  in  the  following  cases: — 

"i.  When  the  sheriff  and  coroner  are  both  parties; 

"2.  When  either  of  these  officers  is  a  party  and 
the  process  is  against  the  other;  and, 

"3.  When  either  of  these  officers  is  a  party  and 
there  is  a  vacancy  in  the  office  of  the  other,  or  when 
it  appears  by  affidavit  to  the  satisfaction  of  the  court 
in  which  the  proceeding  is  pending,  or  to  the  judge 
thereof,  that  both  of  these  officers  are  disqualified, 
or  by  reason  of  any  bias,  prejudice,  or  other  cause, 
would  not  act  promptly  or  impartially. 


§§  70-/2  SHERIFFS  AND  CONSTABLES.  42 

"When  process  is  delivered  to  an  elisor,  he  must 
execute  and  return  it  in  the  same  manner  as  the 
sheriff  is  required  to  execute  similar  process." 
{California.  County  Govt.  Bill,  sec.  iO()',  Stats.  1893, 
p.  374;  Pol.  Code,  sec.  4192.) 

§  70.  Fees  of  coroner  or  elisor.  "Whenever 
process  is  executed,  or  any  act  performed  by  a  coro- 
ner or  elisor  in  the  cases  provided  by  law  in  that 
behalf,  such  coroner  or  elisor  shall  be  entitled  to 
receive  the  same  fees  as  the  sheriff  would  be  entitled 
to  receive  for  the  same  service,  to  be  paid  by  the 
plaintiff"  in  case  of  the  summoning  of  jurors  to  com- 
plete the  panel,  and  by  the  person  or  party  requir- 
ing the  service  in  all  other  cases  in  private  actions. 
If  rendered  at  the  instance  of  the  people,  it  shall  be 
audited  and  paid  as  a  county  charge."  {California. 
County  Govt.  Bill,  sec.  109;  Stats.  1893,  p.  374.) 

§71.  Vacancies.  Strictly  speaking,  there  can  be 
no  vacancy  in  the  offfce  of  sheriff,  caused  by  the 
death,  removal,  or  resignation  of  the  incumbent,  for 
upon  the  happening  of  such  an  event,  the  coroner, 
by  operation  of  law,  becomes  sheriff,  in  the  absence 
of  statutory  provision  to  the  contrary.  {People  v. 
Plicenix,  6  Cal.  92.)  But  the  coroner  only  holds  the 
office  of  sheriff  ex  officio  until  the  appointment  of 
a  new  sheriff,  by  the  board  of  supervisors.  {Cali- 
fornia.   See  sec.  yj  post.) 

§  72.  When  vacancy  exists  —  Generally.  "The 
office  of  sheriff  becomes  vacant  on  the  happening 
of  either  of  the  following  events  before  the  expira- 
tion of  the  term: — 


43  GENERAL  REGULATIONS.  §§  73,  7+ 

"i.  The  death  of  the  incumbent. 

"2.  His  insanity,  found  upon  a  commission  of 
lunacy  issued  to  determine  the  fact. 

"3.  His  resignation. 

"4.   His  removal  from  office. 

"5.  His  ceasing  to  be  an  inhabitant  of  the  .  .  . 
county.  .  .  . 

"6.  His  absence  from  the  state  .  .  .beyond  the 
period  allowed  by  law. 

"7.  His  ceasing  to  discharge  the  duties  of  his  office 
for  the  period  of  three  consecutive  months,  except 
when  prevented  by  sickness. 

"8.  His  conviction  of  a  felony,  or  of  any  ofifense 
involving  a  violation  of  his  official  duties. 

"9.  His  refusal  or  neglect  to  file  his  official  oath 
or  bond  within  the  time  prescribed. 

*'io.  The  decision  of  a  competent  tribunal  declar- 
ing void  his  election  or  appointment."  (California. 
Pol.  Code,  sec.  996;  County  Govt.  Bill,  sec.  67.) 

§  yi,.  Resignation — To  whom  sent.  The  resig- 
nation of  the  sheriff  must  be  in  writing  and  filed 
\\i\h  the  clerk  of  the  board  of  supervisors.  {Cali- 
fornia.   Pol.  Code,  sec.  995.) 

§  74.  Removal  from  office  by  summary  proceed- 
ings. "\A'hen  an  information  in  writing,  verified  by 
the  oath  of  any  person,  is  presented  to  a  superior 
court,  alleging  that  any  officer  within  the  jurisdiction 
of  the  court  has  been  guilty  of  charging  and  collect- 
ing illegal  fees  for  services  rendered  or  to  be  ren- 
dered in  his  office,  or  has  refused  or  neglected  to 
perform  the  official  duties  pertaining  to  his  office, 
the  court  must  cite  the  party  charged  to  appear  be- 


§§  1^-1^  SHERIFFS  AND  CONSTABLES.  44 

fore  the  court  at  a  time  not  more  than  ten  nor  less 
than  five  days  from  the  time  the  information  was 
presented,  and  on  that  day  or  some  other  subsequent 
day,  not  more  than  twenty  days  from  that  on  which 
the  information  was  presented,  must  proceed  to  hear, 
in  a  summary  manner,  the  information  and  evidence 
offered  in  support  of  the  same,  and  the  answer  and 
evidence  offered  by  the  party  informed  against;  and 
if  on  such  hearing  it  appears  that  the  charge  is  sus- 
tained, the  court  must  enter  a  decree  that  the  party 
informed  against  be  deprived  of  his  office,  and  must 
enter  a  judgment  for  five  hundred  dollars  in  favor 
of  the  informer,  and  such  costs  as  are  allowed  in  civil 
cases."     (California.    Pen.  Code,  sec.  772.) 

In  addition  to  the  penalty  affixed  by  express  terms, 
to  every  neglect  or  violation  of  official  duty  on  the 
part  of  public  officers — state,  county,  city,  or  town- 
ship— where  it  is  not  so  expressly  provided,  they 
may,  in  the  discretion  of  the  court,  be  removed  from 
office.  {California.  Pen.  Code,  sec.  tbi.  See,  also, 
next  section.) 

§  75.  Accusation  by  grand  jury.  "An  accusa- 
tion in  writing  against  any  district,  county,  township, 
or  municipal  officer,  for  willful  or  corrupt  miscon- 
duct in  office,  may  be  presented  by  the  grand  jury  of 
the  county  for  or  in  which  the  officer  accused  is 
elected  or  appointed."     (California.    Pen.  Code,  sec. 

758.) 

§  76.  Absence  from  state.  The  sheriff  shall  in 
no  case  absent  himself  from  the  state  for  a  period  of 
more  than  sixty  days,  and  for  no  period  without  the 
consent  of  the  board  of  supervisors  of  the  county." 


45  GENERAL  REGULATIONS.  §§  77-80 

(California.  County  Govt.  Bill,  sec.  67;  Stats.  1893, 
p.  367;  Pol.  Code,  sec.  4120.) 

§  77.  Conviction  of  certain  offenses.  When  the 
sheriff  is  committed  under  an  execution  or  commit- 
ment for  not  paying  over  money  received  by  him  by 
virtue  of  his  office,  and  remains  committed  for  sixty 
days,  his  office  is  vacant.  (California.  Stats.  1893, 
p.  373,  sec.  103;  Pol.  Code,  sec.  4186.) 

The  board  of  supervisors,  upon  receiving  a  cer- 
tified copy  of  the  record  of  conviction  of  any  officer 
for  receiving  illegal  fees,  must  declare  his  office  va- 
cant. (California.  Stats.  1893,  p.  510.  See,  also, 
sec.  72,  ante.) 

§  78.  Withdrawal  of  sureties.  After  the  with- 
drawal of  any  of  the  sureties  on  the  sheriff's  official 
bond,  in  the  manner  prescribed  in  sections  972  to 
974  of  the  Political  Code,  the  superior  judge  or 
judges  must  make  an  order  declaring  the  office  va- 
cant.    (California.    Pol.  Code,  sec.  975.) 

§  79.  How  vacancy  is  filled.  A  vacancy  in  the 
office  is  filled  by  appointment  made  by  the  board  of 
supervisors.  Appointees  hold  until  the  vacancies 
are  filled  by  election.     (California.    Pol.  Code,  sec. 

4115-) 

§  80.    Not  to  be  interested  in  certain  contracts. 

The  sheriff  must  not  be  interested  in  any  contract 
made  by  him  in  his  official  capacity,  such  as  con- 
tracts for  sheriff's  advertising  and  the  like.  (Cali- 
fornia.    Pen.  Code,  sec.  920.) 


•§§81-84  SHERIFFS  AND  CONSTABLES.  46 

§  81.     Not   to   purchase   at   certain   sales.      The 

sheriff  must  not  be  a  purchaser  at  any  sale  nor  ven- 
dor at  any  purchase  made  by  him  in  his  official 
capacity.     {California.     Pen.  Code,  sec.  Ji.) 

§  82.  Not  to  deal  in  scrip,  etc.  The  sheriff  and 
his  deputies  are  "prohibited  from  purchasing  or 
selling,  or  in  any  manner  receiving  to  their  own  use 
or  benefit,  or  to  the  use  or  benefit  of  any  person  or 
persons  whatever,  any  state,  county,  or  city  warrants, 
scrip,  orders,  demands,  claims,  or  other  evidences 
of  indebtedness  against  the  state,  or  any  county  or 
city  thereof,  except  evidences  of  indebtedness  issued 
to  or  held  by  them  for  services  rendered  as  such 
officer,  deputy,  or  clerk,  and  evidences  of  the  funded 
indebtedness  of  such  state,  city,  town,  or  corporation." 
(California.     Pol.  Code,  sec.  923.) 

§  83.  Penalty  for  violation.  Any  person  violat- 
ing any  of  the  provisions  of  the  three  preceding  sec- 
tions "is  punishable  by  a  fine  of  not  more  than  one 
thousand  dollars,  or  by  imprisonment  in  the  state 
prison  not  more  than  five  years,  and  is  forever  dis- 
qualified from  holding  any  office  in  this  state." 
(California.     Pen.  Code,  sec.  71.) 

§  84.    Expiration  of  term — Execution  of  Process. 

"When  any  process  remains  with  the  sheriff  unexe- 
cuted, in  whole  or  in  part,  at  the  time  of  his  death, 
resignation  of  office,  or  at  the  expiration  of  his  term 
of  office,  said  process  shall  be  executed  by  his  suc- 
cessor or  successors  in  office,  and  when  the  sheriff 
sells  real  estate,  under  and  by  virtue  of  an  execution 
or  order  of  court,  he  or  his  successors  in  office  shall 


47  r.KXERAL   RRGl'LATIOXS.  §§  85-87 

execute  and  deliver  to  the  purchaser  or  purchasers 
all  such  deeds  and  conveyances  as  are  required  by 
law  and  necessary  for  the  purpose,  and  such  deeds 
and  conveyances  shall  be  as  valid  in  law  as  if  they 
had  been  executed  by  the  sheriff  who  made  the  sale.'.' 
(California.     Sfals.   1893,  pp.  373,  374,  sec.   107.) 

§  85.  Unfinished  business — Compensation  of  suc- 
cessor. It  is  the  duty  of  the  sherifif  to  complete  the 
business  of  his  office  to  the  time  of  the  expiration  of 
his  term;  and  in  case  he  shall  leave  to  his  successor 
official  labor  to  be  performed  which  it  was  his  duty 
to  perform,  he  shall  be  liable  to  pay  to  his  successor 
the  full  value  for  such  services.  (California.  Stats. 
1893,  P-  511,  •^^'^-  227.) 

§  86.    To    surrender    books,    etc.,    to    successor. 

*'Every  officer  whose  office  is  abolished  by  law,  or 
who,  after  the  expiration  of  the  time  for  which  he 
may  be  appointed  or  elected,  or  after  he  has  resigned 
or  been  legally  removed  from  office,  w^illfully  and 
unlawfully  w^ithholds  or  detains  from  his  successor, 
or  other  person  entitled  thereto,  the  records,  papers, 
documents,  or  other  writing  appertaining  or  belong- 
ing to  his  otBce,  or  mutilates,  destroys,  or  takes  away 
the  same,  is  punishable  by  imprisonment  in  the  state 
prison  not  less  than  one  nor  more  than  ten  years." 
(California.     Pen.  Code,  sec.  76.) 

§  87.  Resisting  public  officer.  "Every  person 
who  willfully  resists,  delays,  or  obstructs  any  public 
officer  in  the  discharge  or  attempt  to  discharge  any 
duty  of  his  office,  when  no  other  punishment  is  pre- 
scribed,   is    punishable    by   fine    not   exceeding    five 


§  88  SHERIFFS  AND  CONSTABLES.  48 

thousand  dollars,  and  imprisonment  in  the  county 
jail  not  exceeding  five  years."  {California.  Pen. 
Code,  sec.  148.) 

"Every  person  who  attempts,  by  means  of  any 
threat  or  violence,  to  deter  or  prevent  an  executive 
officer  from  performing  any  duty  imposed  upon  such 
officer  by  law,  or  who  knowingly  resists,  by  the  use 
of  force  or  violence,  such  officer,  in  the  performance 
of  his  duty,  is  punishable  by  fine  not  exceeding  five 
thousand  dollars,  and  imprisonment  in  the  county 
jail  not  exceeding  five  years."  {California.  Pen. 
Code,  sec.  69.) 

§  88.    Justifiable     homicide     by     public     officers. 

"Homicide  is  justifiable  when  committed  by  public 
officers  and  those  acting  by  their  command  in  their 
aid  and  assistance,  either — 

"i.  In  obedience  to  any  judgment  of  a  competent 
court;  or, 

"2.  When  necessarily  committed  in  overcoming 
actual  resistance  to  the  execution  of  some  legal  proc- 
ess, or  in  the  discharge  of  any  other  legal  duty;  or, 

"3.  When  necessarily  committed  in  retaking  felons 
who  have  been  rescued  or  have  escaped,  or  when 
necessarily  committed  in  arresting  persons  charged 
with  felony,  and  who  are  fleeing  from  justice  or  re- 
sisting such   arrest."      {California.     Pen.   Code,  sec. 

196.) 

The  law  governing  the  taking  of  human  life  by 
officers  of  justice  is  thus  stated  by  Carlton  on  Homi- 
cide {sec.  528)  :  "In  cases  of  felony,  the  killing  is 
justifiable  before  an  actual  arrest  is  made  where  in 
no  other  way  the  escaping  felon  can  be  taken.  In 
such  cases, — that  is  to  say,  in  cases  of  felony, — if  the 


49  GENERAL  REGULATIONS.  §  89 

felon  flees  from  justice,  or  if  a  dangerous  wound  be 
given,  it  is  the  duty  of  every  man  to  use  his  best 
endeavors  for  preventing  an  escape;  and  if,  in  the 
pursuit,  the  felon  be  killed,  when  he  cannot  other- 
wise be  taken,  the  homicide  is  justifiable;  and  the 
same  rule  holds  if  the  felon,  after  being  legally  ar- 
rested, break  away  and  escape.  But,  if  he  may  be 
taken  in  any  case  without  such  severity,  it  is  at  least 
manslaughter  in  him  who  kills  him;  and  the  jury 
ought  to  inquire  whether  it  was  done  of  necessity 
or  not."  In  State  v.  Bland,  97  N.  C.  438,  2  S.  E. 
460,  the  court  say:  "The  law  does  not  clothe  an 
ofiicer  with  the  authority  to  judge  arbitrarily  of  the 
necessity  of  killing  a  prisoner  to  secure  him,  or  of 
killing  a  person  to  prevent  a  rescue  of  a  prisoner. 
He  cannot  kill  unless  there  is  a  necessity  for  it,  and 
the  jury  must  determine  from  the  testimony  the  ex- 
istence or  absence  of  the  necessity."  The  rule  de- 
ducible  from  the  authorities  is  that  a  sherifif  or  other 
officer,  in  arresting  or  preventing  the  escape  of  a 
person  charged  with  a  felony,  may  use  such  force 
as  is  reasonably  necessary,  even  to  the  taking  of  life. 
But  if  the  felon  can  be  taken,  or  his  escape  prevented, 
without  killing  the  offender,  and  he  be  slain,  the 
officer  is  guilty  of,  at  least,  manslaughter. 

§  89.  Retaking  goods  from  officer.  "Every  per- 
son who  willfully  injures  or  destroys,  or  takes  or 
attempts  to  take,  or  assists  any  person  in  taking  or 
attempting  to  take,  from  the  custody  of  any  officer 
or  person,  any  personal  property  which  such  officer 
or  person  has  in  charge  under  any  process  of  law,  is 
guilty  of  a  misdemeanor."  (California.  Pen.  Code, 
sec.  102.) 


§§  90-93  SHERIFFS  AND  CONSTABLES.  50 

§  90.  Giving  or  offering  bribes  to  officer. .  "Every 
person  who  gives  or  offers  any  bribe  to  any  executive 
officer  of  this  state,  with  intent  to  influence  him  in 
respect  to  any  act,  decision,  vote,  opinion,  or  other 
proceeding  as  such  officer,  is  punishable  by  imprison- 
ment in  the  state  prison  not  less  than  one  nor  more 
than  fourteen  years,  and  is  disqualified  from  holding 
any  office  in  this  state.  {California.  Pen.  Code, 
sec.  67.) 

§91.    Fish  nets — Confiscation  unauthorized.     So 

much  of  section  636  of  the  Penal  Code  of  California 
as  declares  that  all  nets,  etc.,  used  in  catching  or 
taking  fish  in  violation  of  chapter  i  of  title  XV  of 
said  code,  shall  be  forfeited,  and  may  be  seized  by 
the  peace  officers  of  the  county,  and  by  them  de- 
stroyed or  sold,  is  unconstitutional  and  void.  {leck 
V.  Anderson,  c^j  Cal.  251,  40  Am.  Rep.  115.)  Con- 
fiscations without  a  judicial  hearing  and  judgment, 
after  due  notice,  are  void,  as  not  being  due  process 
of  law. 

§  92.  Computing  time.  "The  time  in  which  any 
act  provided  by  law  is  to  be  done  is  computed  by 
excluding  the  first  day  and  including  the  last,  unless 
the  la'St  day  is  a  holiday,  and  then  it  is  also  exclud- 
ed."     (California.     Pol.  Code,  sec.  12.) 

§  93.  When  act  falls  on  holiday.  "Whenever 
any  act  of  a  secular  nature  other  than  a  work  of 
necessity  or  mercy,  is  appointed  by  law  or  contract 
to  be  performed  upon  a  particular  day,  which  day 
falls  upon  a  holiday,  such  act  may  be  performed 
upon  the  next  business  day  with  the  same  effect  as 


5 1  GENEML  REGULATIONS.  §  94 

if  it  had  been  performed  upon  the  day  appointed." 
{California.     Pol.  Code,  sec.   13.) 

§  94.  Legal  holidays.  In  California  the  follow- 
ing are  legal  holidays:  Every  Sunday,  January  ist, 
February  22d,  May  30th,  July  4th,  September  9th, 
the  first  Monday  in  September,  December  25th, 
every  day  on  which  an  election  is  held  throughout 
the  state,  and  every  day  appointed  by  the  President 
of  the  United  States,  or  by  the  governor  of  this  state, 
for  a  public  fast,  thanksgiving,  or  holiday.  If  the 
first  day  of  January,  the  22d  of  February,  the  30th 
of  May,  the  4th  of  July,  the  9th  of  September,  or 
the  25th  of  December,  fall  upon  a  Sunday,  the  Mon- 
day following  is  a  holiday. 

Every  Saturday  from  twelve  o'clock  noon  until 
twelve  o'clock  midnight  is  a  holiday  as  regards  the 
transaction  of  business  in  the  public  ofUces  of  this 
state,  and  also  in  political  divisions  thereof  where 
laws,  ordinances,  or  charters  provide  that  public 
offices  may  be  closed  on  holidays;  provided,  this  shall 
not  be  construed  to  prevent  or  invalidate  the  issuance, 
filing,  service,  execution,  or  recording  of  any  legal 
process  or  written  instrument  whatever  on  such  Sat- 
urday afternoons.     {Stats.  1907,  p.  565.) 


CHAPTER  III. 

CONSTABLES. 

§  95.  Nature  of  the  office. 

§  96.  Duties  of  the  office. 

§  97.  Appointment  of  deputies. 

§  98.  Law  governing  acts  of  constables. 

§  99.  Arrest  outside  of  county — Fees. 

§  95.  Nature  of  the  office.  The  constable  is  the 
executive  officer  of  the  justices'  courts  in  his  town- 
ship, and  usually  has  by  statute  the  same  powers  and 
duties  as  to  the  court  and  its  process  as  the  sheriff 
has  with  reference  to  the  courts  of  record  of  the 
county.      {California.     Pol.  Code,  sees.  4104,  4314- 

4315-) 

§96.  Duties  of  the  office.  "Constables  must 
attend  the  courts  of  justices  of  the  peace  within  their 
townships  whenever  so  required,  and  within  their 
counties  execute,  sers^e,  and  return  all  writs,  proc- 
esses, and  notices  directed  or  delivered  to  them  by 
a  justice  of  the  peace  of  such  county  or  by  any  com- 
petent authority."  They  also  have  the  same  general 
duties  as  the  sheriff,  excepting  as  to  the  custody  of 
the  county  jail  and  attendance  upon  courts  of  record, 
as  mentioned  in  section  22  ante.  Express  statutory 
provision  is  also  usually  made,  giving  the  constable 
the  same  powers  as  the  sheriff  in  cases  of  attachment, 
replevin,  and  the  like,  in  the  justices'  courts.  (Cali- 
fornia. Pol.  Code,  sees.  4314,  4315;  Stats.  1907,  p. 
406;  Code  Civ.  Proe.,  sees.  869,  870.) 


53  CONSTABLES.  §  97 

§  97.  Appointment  of  deputies.  A  constable 
may  appoint  as  many  deputies  as  may  be  necessary 
for  the  prompt  and  faithful  discharge  of  the  duties 
of  his  office.  Such  appointment  must  be  made  in 
writing  and  filed  in  the  office  of  the  county  clerk; 
and  until  such  appointment  is  made  and  filed,  and 
until  such  deputy  shall  have  taken  the  oath  of  office, 
no  one  shall  be  or  act  as  such  deputy.  (California. 
County  Govt.  Bill,  sec.  61 ;  Stats.  1893,  p.  367.) 

§  98.    Law  governing  acts  of  constables.    As  the 

duties  and  powers  of  constables  as  to  process  issuing 
from  justices'  courts  are  the  same  as  those  of  the 
sherifif  with  reference  to  process  from  the  courts  of 
record,  the  same  rules  of  procedure  and  court  de- 
cisions are  applicable.  Such  provisions  and  decisions 
are  to  be  found  in  the  several  chapters  of  this  work 
devoted  to  the  respective  subjects. 

§  99.  Arrest  outside  of  county — Fees.  In  Cali- 
fornia a  constable  may  go  outside  of  his  county  to 
execute  criminal  process,  provided  the  same  be  prop- 
erly indorsed  as  provided  by  the  statute;  and  the 
constable  who  makes  such  arrest  is  entitled  to  his 
fees  for  traveling  both  ways.  (Allen  v.  Napa  County, 
82  Cal.  187,  23  Pac.  43.) 


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CHAPTER  IV. 

SUMMONS. 

Office  and  issuance  of  summons. 

Prompt  service  due  to  plaintiiT. 

The  receipt. 

The  complaint. 

By  whom  served. 

How  served,  generally. 

Corporations,  minors,  and  insane  persons. 

Service  on  corporations — Decisions. 

Service  upon  foreign  corporations. 

Service  on  minors. 

Service  on  partnership. 

In  actions  against  vessels. 

Service  of  summons  in  forcible  and  unlawful  detainer. 

Service  to  be  personal. 

Long  delay  in  service  of  summons. 

Inexcusable  delay — Instances. 

Refusing  service. 

Fraudulent  service. 

Return — When  and  to  whom  made. 

Form  of  return. 

True  name  to  be  given. 

Insufficient  evidence  of  service. 

Variation  of  name — Idem  sonans. 

Informal  return — Presumptions. 

General  return  sufficient. 

Return  of  deputy  must  be  made  in  name  of  sheriiif. 

Return  when  not  served  by  officer. 

Sherifif's  return  not  traversable. 

No  service  after  return. 

Erasures  in  return. 

Correction  of  return. 

Amended  summons — service  of. 

Criminal  summons  against  corporation. 


55  SUMMONS.  §§  I00-I02 

§  133.     Summons  in  justices'  courts. 

§  134.     Summons  in   justices'  courts — Service  outside  the 

county. 
§  135.     Unauthorized  service  set  aside. 

§  100.    Office    and    issuance    of    summons.     The 

office  of  a  summons  is  to  give  the  defendant  authentic 
notice  that  an  action  has  been  commenced  against 
him,  to  apprise  him  of  the  nature  and  amount  of 
the  claim  of  the  plaintiff,  and  to  compel  his  appear- 
ance in  court  to  answer  to  these  demands  within  a 
time  stated,  under  penalty  of  forfeiting  all  subsequent 
right  to  dispute  their  validity  or  to  prevent  their  en- 
forcement,     (i   JVait's  Practice,  p.  468.) 

Summons  out  of  a  court  of  record  is  issued  under 
the  seal  of  the  court  and  signature  of  the  clerk. 

§  10 1.     Prompt    service    due    to    plaintiff.      The 

service. of  the  summons — and,  in  fact,  of  any  process 
— should  not  be  unnecessarily  delayed.  The  plaintiff 
is  in  pursuit  of  his  rights,  and  he  may  reasonably 
expect  prompt  assistance  in  that  pursuit,  from  the 
officers  upon  whom  he  must  rely.  Delay  in  the  serv- 
ice of  even  so  simple  a  process  may  subject  him  to 
irreparable  loss.  He  is  entitled  by  right  to  every 
facility  which  the  law  allows  him  to  a  speedy  hear- 
ing of  his  cause  before  the  court. 

§  102.  The  receipt.  The  original  summons 
should  be  indorsed  as  soon  as  received,  with  the 
month,  day,  year,  hour,  and  minute  of  its  reception; 
and,  when  required  by  law,  copies  for  service  pre- 
pared, and  compared  with  the  original,  to  insure  cor- 
rectness,  and   a  copy  of   the  complaint  attached   to 


§§  1 03-106        SHERIFFS  AND  CONSTABLES.  56 

each  copy  of  the  summons.     (California.     Code  Civ. 
Proc,  sec.  410;  Pefi.  Code,  sec.  4176.) 

§  103.  The  complaint.  A  copy  of  the  complaint 
for  service  is  usually  furnished  to  the  officer  with 
the  original  summons,  when  required  for  service. 
If  not  so  furnished  and  the  officer  prepares  the  copy 
by  request  of  the  plaintifif,  he  may  charge  his  lawful 
fees  for  making  such  copy.  If  the  case  is  brought 
in  a  justice's  court,  in  most  states  the  complaint  may 
be  either  a  concise  statement  in  writing  of  the  facts 
constituting  the  plaintiff's  cause  of  action  or  a  copy 
of  the  account,  note,  bill,  bond,  or  instrument  upon 
which  the  action  is  based.  (California.  Code  Civ. 
Proc,  sec.  853.) 

§  104.  By  whom  served.  The  code  and  statu- 
tory provisions  vary  much  in  different  states  as  to  the 
service  of  summons.  In  California  service  may  be 
made  by  the  sheriff  or  by  any  other  person  of  the 
age  of  eighteen  years  or  over,  not  a  party  to  the 
action. 

§  105.  How  served,  generally.  Service  of  sum- 
mons is  made  by  delivering  to  each  of  the  defend- 
ants personally  a  copy  of  the  summons  and  a  copy 
of  the  complaint. 

§  106.    Corporations,  minors,  and  insane  persons. 

The  summons  is  served  by  delivering  a  copy  thereof 
(and  of  the  complaint),  as  follows: 

"i.  If  the  suit  is  against  a  corporation  formed  un- 
der the  laws  of  this  state:  to  the  president  or  other 
head  of  the  corporation,  secretary,  cashier,  or  manag- 
ing agent  thereof. 


57  SUMMONS.  §§  1 06,  107 

"2.  If  the  suit  is  against  a  foreign  corporation,  or 
a  non-resident  joint  stock  company  or  association, 
doing  business  and  having  a  managing  or  business 
agent,  cashier,  or  secretary  within  this  state:  to  such 
agent,  cashier,  or  secretary. 

"3.  If  against  a  minor,  under  the  age  of  fourteen 
years,  residing  within  this  state:  to  such  minor,  per- 
sonally, and  also  to  his  father,  mother,  or  guardian; 
or  if  there  be  none  within  this  state,  then  to  any  per- 
son having  the  care  or  control  of  such  minor,  or  with 
whom  he  resides,  or  in  whose  service  he  is  employed. 

"4.  If  against  a  person  residing  within  this  state 
who  has  been  judicially  declared  to  be  of  unsound 
mind,  or  incapable  of  conducting  his  own  affairs,  and 
for  whom  a  guardian  has  been  appointed:  to  such 
person  and  also  to  his  guardian. 

"5.  If  against  a  county,  city,  or  town:  to  the  presi- 
dent of  the  board  of  supervisors,  president  of  the 
council,  or  trustees,  or  other  head  of  the  legislative 
department  thereof."  (California.  Code  Civ.  Proc, 
sec.  41 1.) 

§  107.    Service  on  corporations — Decisions.     The 

manner  of  service  upon  corporations,  insane  persons, 
counties,  cities,  and  towns  in  California  is  prescribed 
in  section  41 1  of  the  Code  of  Civil  Procedure.  (Sec. 
104,  ante.) 

In  an  action  against  a  corporation,  where  the  sum- 
mons was  served  upon  Bristol,  who  had  been  duly 
elected  its  president,  and  presided  at  several  meetings 
of  its  board  of  trustees,  and  who  had  never  resigned, 
or  been  removed,  or  his  office  declared  vacant,  or  a 
permanent  president  chosen  in  his  place,  though  he 
had  left  the  county  and  no  longer  took  any  part  in  the 


§  lo8  SHERIFFS  AND  CONSTABLES.  58 

management  of  the  corporation  affairs,  and  at  the 
meeting  of  the  board  after  his  so  leaving  the  county, 
another  person  was  elected  president  pro  tempore, 
for  that  meeting,  and  was  regarded  by  the  stockhold- 
ers as  the  president;  held,  that  Bristol  was  still  presi- 
dent de  jure,  and  the  service  upon  the  corporation 
valid.     {Eel  River  N.  Co.  v.  Struver,  41  Cal.  618.) 

In  Rowe  v.  Table  Mountain  W.  Co.,  10  Cal.  444, 
a  question  was  raised  as  to  the  regularity  of  a  judg- 
ment by  default,  on  a  service  of  the  summons  upon 
one  M.  as  president,  and  C.  as  secretary,  without 
proof  beyond  the  mere  return  that  those  persons  were 
such  officers.  The  court  held  that  as  the  statute  ex- 
pressly authorized  a  service  upon  the  corporation 
by  serving  the  summons  on  their  officers,  and  as  the 
practice  had  been  to  take  judgment  by  default  upon 
similar  returns,  they  would  not  hold  it  erroneous. 

§  108.  Service  upon  foreign  corporations.  When 
foreign  corporations  are  required  to  file  with  the 
secretary  of  state  an  instrument  designating  a  person 
upon  whom  process  might  be  served,  service  of  sum- 
mons upon  such  person  is  suflicient,  so  long  as  such 
designation  is  not  revoked,  and  although  such  per- 
son is  not  one  of  the  officers  of  the  corporation  men- 
tioned in  the  code  section  prescribing  the  persons 
upon  whom  service  of  summons  against  a  corpora- 
tion may  be  made  generally.  {Eureka  Lake  and  Y. 
C.  Co.  v.  Superior  Court,  66  Cal.  311,5  Par.  490.) 

When  the  statute  provides  for  service  of  summons 
upon  the  "managing  agent  or  cashier"  of  a  foreign 
corporation,  service  upon  a  person  employed  as  clerk 
in  a  store  belonging  to  it  is  not  sufficient,  although 
he   has  the   custody  of  moneys  of   the  corporation, 


59  SUMMONS.  §§109-111 

keeps  accounts  of  employees  and  pays  them.  {Blanc 
V.  Paymaster  Mining  Co.,  95  Cal.  524,  29  Am.  St. 
Rep.  149,  30  Pac.  765.) 

§  109.  Service  on  minors.  Under  the  Califor- 
nia code  provision  for  service  of  summons  upon 
minors  {sec.  104  ante)  ^  not  only  should  a  copy  of  the 
summons  and  complaint  be  delivered  to  each  minor, 
but  a  copy  for  each  minor  should  be  delivered  to 
the  father,  mother,  or  guardian,  or  the  person  having 
the  care  or  control  of  such  minors,  or  with  whom 
they  reside,  or  in  whose  service  they  are  employed. 

If  a  father  sues  his  infant  son  residing  with  him, 
and  the  statute  requires  the  summons  to  be  served 
personally  on  the  infant  and  also  on  the  father,  a 
service  on  the  infant  alone  is  sufficient,  for  the  father 
has  notice  of  the  suit  without  service.  {Brown  v. 
Laivson,  51  Cal.  615.) 

§110.  Service  on  partnership.  "When  two  or 
more  persons,  associated  in  any  business,  transact 
such  business  under  a  common  name,  whether  it  com- 
prise the  names  of  such  persons  or  not,  the  associates 
may  be  sued  by  such  common  name,  the  summons 
in  such  cases  being  served  on  one  or  more  of  the  asso- 
ciates, and  the  judgment  in  the  action  shall  bind  the 
joint  property  of  all  the  associates,  in  the  same  man- 
ner as  if  all  had  been  named  defendants,  and  had 
been  sued  upon  their  joint  liability."  {California. 
Code  Civ.  Proc,  sec.  388.) 

§  III.    In  actions  against  vessels.      In  an  action 

against  a  steamer,  vessel,  or  boat,  "the  summons  and 
copy  of  the  complaint  must  be  served  on  the  owners 


§§  II2-II4       SHERIFFS  AND  CONSTABLES.  6o 

if  they  can  be  found,  otherwise  they  may  be  served  on 
the  master,  mate,  or  person  having  charge  of  the 
steamer,  vessel  or  boat."  (California.  Code  Civ. 
Proc,  sec.  8i6.) 

§  112.  Service  of  summons  in  forcible  and  un- 
lawful detainer.  The  summons  must  be  directed  to 
the  defendant,  and  be  served  at  least  two  days  before 
the  return  day  designated  therein,  and  must  be  served 
and  returned  in  the  same  manner  as  summons  in  civil 
actions  is  served  and  returned.  {California.  Code 
Civ.  Proc,  sec.  1167.) 

§  113.  Service  to  be  personal.  Unless  the  stat- 
ute provides  otherwise,  as  in  Colorado,  Montana, 
Oregon,  and  Washington  (sec.  103  ante),  the  copy 
of  summons  must  be  delivered  to  the  defendant  per- 
sonally. It  is  no  service  on  a  defendant  to  deliver 
it  to  any  relative  of  the  defendant  for  him.  In  case 
of  defendants  other  than  natural  persons  of  sound 
mind  and  over  the  age  of  majority,  care  must  be 
taken  that  the  service  be  made  strictly  according  to 
the  requirements  of  the  statute. 

The  law  is  explicit  in  this  regard,  and  wisely  so; 
for,  if  it  were  otherwise,  advantage  might  be  taken 
in  many  ways  by  evil-disposed  persons  to  defraud 
defendants  of  their  rights.  A  court  acquires  no  juris- 
diction over  a  defendant  who  has  not  been  legally 
brought  into  court. 

§  114.    Long  delay  in  service  of  summons.      If 

the  plaintifif  fails  to  prosecute  his  suit  with  reason- 
able diligence  the  suit  may  be  dismissed  on  motion 
of  the  defendant.    The  question  of  whether  the  delay 


6 1  SUMMONS.  §  115 

in  prosecution  by  failure  to  serve  the  summons  is 
reasonable,  is  one  for  the  consideration  of  the  court 
under  all  the  circumstances  of  each  particular  case. 
In  California,  since  1889,  an  action  may  be  dismissed 
if  the  summons  is  not  served  and  returned  within 
three  years  after  the  commencement  of  the  action. 
{Code  Civ.  Proc,  sec.  581.)  Under  this  provision, 
however,  the  court  still  has  discretionary  power  to 
dismiss  for  inexcusable  delay  before  the  expiration 
of  that  period.  (Kreiss  v.  Hotaling,  99  Cal.  383,  33 
Pac.  1 125.) 

§  115.  Inexcusable  delay — Instances.  If  a  sum- 
mons is  not  served  until  three  years  after  the  com- 
plaint is  filed  and  it  is  issued,  and  there  is  no  reason- 
able excuse  for  the  delay,  the  service  will  be  set  aside, 
on  motion,  and  the  suit  dismissed.  {Eldridge  v. 
Kay,  45  Cal.  49.)  In  this  case  the  defendants  during 
all  the  time  were  living  within  a  short  distance  of  the 
plaintiff,  and  were  easy  to  be  found.  The  court  held 
that  such  delay  was  absolutely  without  excuse,  and 
that  it  would  be  a  practical  defeat  of  the  statute, 
which  limits  the  issuance  of  a  summons  to  the  period 
of  one  year  after  the  filing  of  the  complaint. 

Where  a  complaint  was  filed  and  summons  issued 
more  than  eight  years  before  service,  a  motion  to  set 
aside  the  summons  and  strike  the  complaint  from  the 
files  was  properly  granted.  (Dupiiy  v.  Shear,  20  Cal. 
238.) 

Allowing  an  action  to  rest  without  service  of  sum- 
mons, for  two  years  and  eight  months  after  the 
summons  is  issued,  is  such  a  want  of  diligence  as  to 
justify  the  court  in  dismissing  the  action.  [Grigsby 
V.  Napa  Co.,  36  Cal.  585,  95  Am.  Dec.  213.) 


§§  I  1 6,  117       SHERIFFS  AND  CONSTABLES.  62 

§116.  Refusing  service.  Serious  annoyances 
sometimes  occur  from  incomplete  service  of  summons 
and  from  imperfect  returns  of  service.  Defendants 
often  attempt  to  avoid  service,  and  when  found  and 
the  summons  is  tendered  to  them,  refuse  to  take  it. 

It  is  a  sufficient  service  in  such  a  case  to  lay  the 
summons  upon  the  defendant's  arm  or  shoulder,  or 
reach  it  toward  him  and  let  go  of  it,  leaving  it  to  the 
defendant  to  take  or  let  it  alone.  It  does  not  lie  in 
the  mouth  of  a  person  to  say  he  was  not  served  with 
process  when  it  is  offered  to  him  and  he  refuses  to 
take  it. 

§  117.  Fraudulent  service.  A  trick  depriving  a 
defendant  of  fair  notice  that  an  action  has  been  com- 
menced is  a  fraud.  Thus,  if  one  departing  for  a 
foreign  country,  when  on  the  steamer,  which  is  about 
to  start,  is  handed  a  sealed  package  containing  the 
summons,  and  he  has  no  reasonable  opportunity  to 
discover  its  contents  before  leaving,  the  service  is  not 
good.     {Bulkley  v.  Bulkley,  6  Abb.  Prac.  307.) 

Service  of  summons  to  be  effective  must  have  been 
intended  as  such,  and  the  defendant  must  know  that 
service  was  intended.  (Heatherly  v.  Hadley,  2  Or. 
276;  Beckman  v.  Cutter,  2  Code  Rep.  51;  Niles  v. 
Vandezee,  14  How.  Prac.  547;  Davison  v.  Baker,  24 
How.  Prac.  39.) 

There  are  numerous  authorities  declaring  that 
where  a  defendant  is  brought  into  the  territorial  juris- 
diction of  the  court  by  force,  or  induced  to  come 
within  the  jurisdiction  by  deceitful  or  fraudulent 
practices,  for  the  purpose  of  having  him  served  with 
process  therein,  such  service  is  not  good,  and  will  not 
confer  jurisdiction,  but  will  be  set  aside. 


63  SUMMONS.  §  I  l8 

Service  of  summons  upon  a  man  who  is  so  drunk 
that  he  cannot  comprehend  may  be  considered  in  its 
nature  fraudulent,  and  set  aside.  {Murphy  v.  Loos, 
104  ///.  514.)  So  service  by  laying  a  summons  on  the 
body  of  a  man  too  sick  to  understand  it,  is  not  valid. 
{People  V.  Superior  Judge,  38  Mich.  310.) 

§  118.    Return — When  and  to  whom  made.     The 

summons  should  be  returned  as  soon  as  all  the  de- 
fendants have  been  served.  It  may  not  be  necessary 
for  any  purpose  that  it  should  be  returned  on  the 
same  day,  but  the  clerk's  office  is  the  proper  place  for 
all  process  after  service  and  where  all  the  parties 
interested  have  reason  to  look  for  it,  in  the  absence 
of  any  statute  to  the  contrary.  If  the  officer  is  in- 
structed to  serve  only  a  portion  of  the  defendants, 
and  there  are  others  to  serve  elsewhere,  the  summons 
should  be  delivered  to  the  plaintiff  or  his  attorney,  to 
enable  him  to  secure  service  on  the  others. 

In  California  no  time  is  fixed  for  the  return  of 
summons,  except  in  forcible  and  unlawful  detainer 
cases  {Code  Civ.  Proc,  sec.  1167),  but  when  it  is 
served  by  the  sheriff,  it  must  be  returned,  with  his 
certificate  of  service,  to  the  office  of  the  clerk  from 
which  it  issued.  In  all  cases  the  service  should  be 
made  promptly  and  return  be  made  without  delay; 
and  such  is  the  statutory  requirement  in  some  states. 
Unless  otherwise  required  by  statute,  as  in  Colorado, 
where  the  summons  may  be  returned  "to  the  attor- 
ney who  issued  the  same,"  the  return  should  be  made 
to  the  clerk  of  the  court.  {California.  Code  Civ. 
Proc,  sec.  410;  Pol.  Code,  sec.  4176.) 


§  119  SHERIFFS  AND  CONSTABLES.  64 

§  119.  Form  of  return.  The  return  of  the  offi- 
cer should  be  in  the  form  of  a  certificate  showing 
the  name  of  the  person  served,  together  with  the  date 
of  service,  county  and  state  where  served,  and  that 
a  copy  of  the  complaint  was  also  served,  when  such 
service  is  necessary.  If  any  of  the  persons  cannot  be 
found,  upon  whom  service  is  required  to  be  made, 
the  certificate  should  show  that  the  sheriff  has  made 
diligent  search  within  his  county  but  is  unable  to 
find  the  person,  naming  or  otherwise  properly  desig- 
nating him,  or  stating  the  appropriate  facts.  The 
return  should  show  clearly  that  those  acts  have  been 
done  which  the  statute  requires  in  making  service. 
If  the  service  is  required  to  be  made  by  a  person  of 
a  certain  age,  the  return  should  show  that  the  person 
was  of  that  age  at  the  time  of  making  the  service. 
{See  Sheriff^s  and  Constables'  Forms,  chap.  XXXII 
post.) 

In  case  of  service  upon  minors,  the  return  should 
be  sufficiently  explicit  to  show,  for  instance,  in  Cali- 
fornia, that  not  only  a  copy  of  the  summons  had  been 
delivered  to  each  minor,  but  that  in  addition  thereto 
a  copy  was  delivered  to  the  father,  or  mother,  or 
guardian,  etc.,  for  each  minor.  There  are  no  means 
of  avoiding  the  provision  of  the  code  which  requires 
service  of  summons  upon  infant  defendants.  The 
court  acquires  jurisdiction  of  the  persons  of  infant 
defendants,  so  as  to  authorize  the  appointment  of  a 
guardian  ad  litem  for  them,  only  by  service  of  sum- 
mons upon  the  infants.  The  same  rule  of  strictness 
applies  in  the  case  of  the  service  of  corporations  and 
persons  of  unsound  mind.     (See  sees.  106,  107  ante.) 

In  making  service  of  a  summons,  and  in  the  return 
of  such  service,  the  provisions  of  the  statute  must  be, 


65  SUMMONS.  §§  1 20,  121 

and  must  be  shown  to  have  been,  substantially  ob- 
served and  followed  by  the  officer,  otherwise  the  pro- 
ceedings cannot  be  supported  upon  a  direct  appeal 
taken.  {People  v.  Bernal,  43  Cal.  385.  California. 
Code  Civ.  Proc,  sec.  415.) 

§  120.  True  name  to  be  given.  The  return  of 
the  officer  should  show  the  true  name  of  the  defend- 
ant served;  and,  to  ascertain  the  true  name,  he  should 
ask  the  party  served  if  the  name  designated  in  the 
summons  is  his  true  name.  If  the  name  in  the  sum- 
mons is  Alfred  Brown,  and  the  true  name  of  the  de- 
fendant is  Albert  Browne,  he  should  return  that  he 
served  the  summons  on  Alfred  Brown,  the  within- 
named  defendant,  whose  true  name  is  Albert  Browne. 

§  121.     Insufficient     evidence     of     service.       In 

O'Brien  v.  Shaws  Flat  and  T.  C.  Co.,  10  Cal.  343, 
w^here  the  return  of  the  sheriff  show^ed  that  he  served 
the  summons  "upon  James  Street,  one  of  the  proprie- 
tors of  the  company,"  the  court  held  it  was  not 
sufficient  evidence  of  service  to  give  the  court  juris- 
diction, and  that  the  summons  might,  with  as  much 
propriety,  have  been  served  upon  any  stranger. 

A  summons  from  a  justice's  court  was  addressed 
to  defendants  Adams  &  Co.  The  constable  returned 
that  he  had  served  it  "by  leaving  a  copy  thereof  with 
Captain  Charles  B.  Macy,"  with  the  date.  Judg- 
ment by  default  thereon  was  held  bad.  The  court 
said  the  justice  could,  with  as  much  propriety,  have 
entered  judgment  on  a  certificate  of  service  upon  any 
other  person.  (Adams  v.  Toicne,  3  Cal.  247.)  The 
sherifif's  return  that  the  summons  was  served  on  one 
of  the  members  is  prima  facie  evidence  of  that  fact. 
{JFilson  V.  Spring  Hill  Co.,  10  Cal.  445.) 


§§  122,  123         SHERIFFS   AND   CONSTABLES.  66 

§  122.  Variation  of  name — Idem  sonans.  When 
the  service  is  required  to  be  made  upon  "Arthur" 
P.,  a  return  showing  service  upon  "A."  P.  is  insuffi- 
cient.     {Waterman  v.  Phinney,  i  JVash.  415.) 

The  question  of  idem  sonans  is  one  of  pronuncia- 
tion, not  of  spelling.  A  return  of  service  upon 
"Rose"  K.,  "one  of  the  defendants,"  is  sufficient  to 
support  a  default  against  "Rosa"  K.,  the  names  being 
substantially  the  same  and  the  identity  prima  facie 
established.     {Galliano  v.  Kilfoy,  94  Cal.  86,  29  Pac. 

416.) 

§123.  Informal  return  —  Presumptions.  Where 
the  return  on  a  summons  states  that  a  copy  of  the 
summons  was  personally  served  on  the  defendant  in 
the  action,  giving  the  time  and  place,  this  return, 
although  informal,  is  held  in  Drake  v.  Duvenick,  45 
Cal.  455,  to  be  sufficient  to  give  the  court  jurisdiction 
of  the  person,  so  that  the  judgment  is  not  void  for 
want  of  jurisdiction,  when  collaterally  attacked. 
Also,  held  that  while  such  return  does  not  show  that 
a  copy  of  the  complaint  was  not  delivered  to  the  de- 
fendant personally,  it  has  at  least  some  legal  tendency 
to  prove  that  it  was  so  delivered.  Also,  that  if,  in 
such  a  case,  there  is  more  than  one  defendant,  the  fact 
that  the  return  does  not  state  that  a  copy  of  the  com- 
plaint was  served  with  the  summons,  does  not  render 
the  judgment  void  in  a  collateral  attack. 

The  following  return  was  held  to  be  good  in  the 
case  of  Cardwell  v.  Sabichi,  59  Cal.  490:  "I  hereby 
certify  that  I  have  served  the  within  summons  by 
delivering  a  copy  thereof,  together  with  true  copy  of 
complaint,  personally,  at  the  township  and  county 
of  Los  Angeles,  this  twenty-fifth  day  of  April,  1879. 


67  SUMMONS.  §  124 

W.  Bcttis,  constable,"  etc.  It  will  be  observed  that 
this  return  fails  to  state  upon  whom  summons  was 
served,  but  as  there  was  but  one  defendant,  the  court 
could  determine  that  the  service  was  made  upon  him. 
Nor  does  it  state  that  the  copy  of  complaint  delivered 
was  a  copy  of  the  complaint  in  the  action  mentioned 
in  the  summons.  It  also  fails  to  state  that  the  service 
was  personal,  but  only  that  the  officer  acted  in  person. 
The  return  was  held  to  be  sufficient  proof  of  service; 
as,  whatever  may  be  the  difference  between  superior 
and  inferior  courts,  with  reference  to  presumptions 
indulged  in  their  favor,  there  is  none  between  sherififs 
and  constables  {Pol.  Code,  sec.  4315)  ;  and  the  re- 
turn of  a  sherifif  is  prima  facie  evidence  of  the  facts 
stated  {Pol.  Code,  sec.  4178)  ;  and  by  force  of  section 
4315  the  same  effect  is  given  to  a  constable's  return. 

§  124.  General  return  sufficient.  Where  a  gen- 
eral power  of  serving  process  is  given  to  an  offi- 
cer, a  general  return  is  sufficient.  {McMillan  v. 
Reynolds,  1 1  Cal.  379.)  The  following  cases  are  also 
cited  in  point  to  prove  the  sufficiency  of  such  a  re- 
turn: {Cantley  W.Moody, y  Port.  {Ala.)  443;L^«(9/r 
V.  Broadhead,  50  Ala.  58;  Holsinger  v.  Dunham,  11 
Ind.  346;  Chandler  v.  Miller,  11  Ind.  382;  Keithley 
v.  Borum,  12  How.  {Miss.)  683;  Crane  v.  Brannan, 
3  Cal.  195,  196.) 

In  its  opinion  in  the  case  of  Cardwell  v.  Sabichi, 
59  Cal.  490,  the  court  cited  sections  41 1,  415,  and  849 
of  the  Code  of  Civil  Procedure,  and  sections  4176 
and  4315  of  the  Political  Code,  and  further  said: — 

"In  Legg  V.  Stillman  et  al.,  2  Cow.  418,  which 
was  certiorari  to  a  justice's  court,  the  suit  was  by 
summons  in  the  court  below,  and  the  return  on  the 


§§  125,  126       SHERIFFS  AND   CONSTABLES.  68 

summons  was  as  follows:  'Personally  served  May 
14,  1822.  Fees,  $0.13.  Thomas  McKnight,  Const.' 
The  return  was  held  sufficient.  In  the  case  cited, 
the  objection  to  the  judgment  was  made  in  a  collateral 
action,  as  in  the  case  before  us  for  decision.  The 
judgment  was  adjudged  valid.  Our  views  in  this 
case  are  in  accord  with  the  ruling  in  Legg  v.  Still- 
man,  which  ruling  meets  our  approval.  In  the  case 
cited,  the  time  and  manner  of  service  were  shown, 
and  in  this  case,  the  time,  manner,  and  place  of  ser- 
vice appear.  In  neither  case  is  defendant  mentioned, 
either  by  name  or  by  being  designated  as  defendant. 
As  to  the  point  that  the  return  does  not  show  that 
the  copy  of  the  complaint  served  was  the  copy  of 
the  complaint  in  the  action  of  Perry  et  al.  v.  Wolf- 
skill,  we  have  to  say  that  we  do  not  think  it  tenable. 
The  return  afiforded  some  evidence  that  it  w^as  such 
copy,  and  we  cannot  say  that  the  proof  in  this  regard 
was  not  sufficient  to  authorize  the  justice  to  render 
a  judgment  by  default.  (See  Code  Civ.  Proc,  sec. 
871  ;  Drake  v.  Diivenick,  45  Cal.  455.)" 

§  125.  Return  of  deputy  must  be  made  in  name 
of  sheriff.  The  return  of  a  deputy  sheriff,  on  a 
process  served,  is  a  nullity,  unless  made  in  the  name 
of  the  sheriff.  (Ronuley  v.  Hoicard,  23  Cal.  402.) 
A  summons  was  served  by  a  deputy  sheriff,  and  re- 
turned with  the  following  signature  to  the  return: 
"Elijah  T.  Cole,  D.  S."  It  was  held  that  this  return 
was  insufficient  to  give  the  court  jurisdiction,  or  au- 
thorize him  to  enter  a  default  judgment. 

§  126.    Return  v/hen  not  served  by  officer.     An 

affidavit  of  service  of  summons  in  California  bv  a 


6g  SUMMONS.  §  127 

person  other  than  the  sheriff  should  state  that  such 
person  was  over  the  age  of  eighteen  at  the  time  of 
such  service,  and  not  a  party  to  the  action.  (See,  also, 
sec.  104  ante.) 

§  127.  Sheriff's  return  not  traversable.  The  re- 
turn of  the  sheriff  upon  process  or  notices  is  prima 
facie  evidence  of  the  facts  in  such  return  stated. 
(California.  Pol.  Code,  sec.  4178)  ;  and,  held  in 
Egery  v.  Buchanan,  5  Cal.  56,  that  a  sheriff's  return 
is  not  traversable,  nor  can  it  be  attacked  collaterally, 
even  if  he  has  been  guilty  of  fraud  or  collusion. 
While  the  courts  may  sometimes,  under  certain  cir- 
cumstances, overlook  irregularities  in  officers'  re- 
turns, they  will  not  do  so  in  all  cases.  The  language 
of  the  law  relating  to  the  service  of  process  should 
be  closely  studied,  its  directions  strictly  followed,  and 
the  return  should  be  made  in  strict  accordance  with 
the  acts  performed,  as  expressed  in  the  statutory  di- 
rections laid  down  for  the  officer's  observance.  Yet, 
while  it  is  advisable  in  all  cases  to  literally  comply 
with  the  provisions  of  the  law,  nothing  short  of  a 
substantial  departure  therefrom  can  properly  be  held 
to  be  fatal  to  a  proceeding  under  it. 

"Its  provisions  and  all  proceedings  under  it  are  to 
be  liberally  construed  with  a  view  to  effect  its  object 
and  to  promote  justice."  (Code  Civ.  Proc,  sec.  4.) 
For  example:  In  California  the  name  of  the  plain- 
tiff's attorney  must  be  indorsed  on  the  summons. 
(Code  Civ.  Proc,  sec.  407.)  In  the  case  of  Shinn 
V.  Cummins,  65  Cal.  97,  3  Pac.  133,  where  the  name 
of  plaintiff's  attorney  appeared  on  the  face  and  not 
on  the  back  of  the  summons,  it  was  held  that  defend- 
ant was  not  prejudiced  by  plaintiff's  failure  to  liter- 
ally comply  with  the  statute. 


§§  128-13 1       SHERIFFS  AND  CONSTABLES.  70 

§  128.  No  service  after  return.  Where  a  sum- 
mons has  been  returned,  it  is  functus  officio,  and  sub- 
sequent service  on  defendant  of  a  copy  made  by  plain- 
tiff from  the  files  of  the  court  is  a  nullity.  (Fanning 
V.  Foley,  99  Cal.  336,  33  Pac.  1098.) 

After  a  summons  has  been  served  on  some  of  the 
defendants  and  returned,  it  is  competent  for  the 
court  to  order  it  delivered  to  the  plaintiff  for  further 
service  on  other  defendants  in  the  same  or  another 
county.     (HancocJi  v.  Pruess,  40  Cal.  572.) 

§  129.  Erasures  in  return.  Where  the  judgment 
of  the  court  recites  that  the  summons  was  served  on 
the  defendant,  the  fact  that,  years  aftervvard,  there 
appears  some  erasure  or  interlineation  on  the  sheriff's 
return,  is  not  sufficient  to  nullify  the  return,  in  the 
absence  of  a  direct  attack  upon  it  for  fraud,  or  for- 
gery or  alteration.  (Gregory  v.  Ford,  14  Cal.  138,  J2 
Am.  Dec.  639.) 

§  130.  Correction  of  return.  The  sheriff  may 
correct  and  may  be  compelled  to  correct  a  defective 
return,  but  not  to  alter  a  return  which  is  regular  on 
its  face.  (Washington  M.  Co.  v.  Kinnear,  i  Wash. 
Terr.  99.) 

§  131.  Amended  summons — Service  of.  Where 
an  amended  complaint  is  filed  before  the  defendants 
have  been  brought  into  court  and  an  amended  sum- 
mons issued,  a  statutory  provision  requiring  an 
am.ended  complaint  to  be  "served  on  the  defendants 
affected  thereby"  (California.  Code  Civ.  Proc,  sec. 
432),  does  not  require  a  mode  of  service  of  summons 
differing  from  other  cases.  (Dowling  v.  Comerford, 
99  Cal.  204,  33  Pac.  853.) 


71  SUMMONS.  §§  132-135 

§  132.    Criminal    summons    against    corporation. 

In  California  provision  is  made  for  criminal  pro- 
ceedings against  a  corporation,  by  the  issuance  of  a 
summons  after  information  or  presentment.  The 
form  of  the  summons  and  the  time  and  manner  of 
service  are  also  prescribed.  {California.  Pen.  Code, 
sees.   1 390- 1 392.) 

§  133.  Summons  in  justices'  courts.  Section 
849  of  the  Code  of  Civil  Procedure  provides  that  a 
summons  issued  by  a  justice  of  the  peace  may  be 
served  by  a  sheriff  or  constable  of  any  of  the  counties 
of  this  state,  or  by  any  other  person  of  the  age  of 
eighteen  years  or  over,  not  a  party  to  the  action. 

§  134.  Summons  in  justices'  courts — Service  out- 
side the  county.  When  a  summons  issued  by  a  jus- 
tice of  the  peace  is  to  be  served  out  of  the  county  in 
which  it  was  issued,  the  summons  must  have  attached 
to  it  a  certificate  under  seal  by  the  county  clerk  of 
such  county,  to  the  effect  that  the  person  issuing  the 
same  was  an  acting  justice  of  the  peace  at  the  date 
of  the  summons.  The  copy  of  summons  served  by 
the  officer  should  have  attached  to  it  a  copy  of  such 
certificate.     (California.    Code  Civ.  Proc.,  sec.  S^.^.) 

§  135.  Unauthorized  service  set  aside.  When  a 
summons  in  a  justice's  court  action  is  served  outside 
of  the  county,  contrary  to  the  statute,  the  justice  of 
the  peace  may  entertain  a  motion  to  set  aside  the 
service,  such  motion  being  made  upon  affidavits  show- 
ing the  grounds.  (History  Co.  v.  Light,  97  Cal.  56, 
31  Pac.  627.) 


CHAPTER  V. 

SUBPCENAS  AND  CITATIONS. 

§  136.  SubpcEna  for  ^v•itness  defined. 

§  137.  Civil  subpoena — By  whom  issued. 

§  138.  Issuance  by  justice  of  peace. 

§  139.  May  be  issued  with  blank. 

§  140.  How  served — Witness  fees. 

§  141.  Failure  to  pay  or  tender  witness  fees. 

§  142.  Witness  on  behalf  of  the  state. 

§  143.  Production  of  prisoner  as  witness. 

§  144.  Witness  before  supervisors. 

§  145.  Witness  out  of  county — Attendance. 

§  146.  Concealed  witness. 

§  147.  Witness  protected  from  arrest. 

§  148.  When  arrest  of  witness  is  void. 

§  149.  Liability  of  officer  for  detention  of  witness. 

§  150.  Discharge  of  witness  from  arrest. 

§  151.  Arrest  and  commitment  for  contempt. 

§  152.  Criminal  subpoena — By  whom  issued. 

§  153.  By  whom  and  how  served. 

§  154.  Production  of  prisoner  as  witness. 

§  155.  Witness  out  of  county — xAttendance. 

§  156.  Expense  of  witness. 

§  157.  Citation  defined. 

§  158.  Service  of  citation. 

§  136.  Subpoena  for  witness  defined.  r'The  proc- 
ess by  which  the  attendance  of  a  witness  is  required 
is  a  subpoena.^  It  is  a  writ  or  order  directed  to  a 
person  and  requiring  his  attendance  at  a  particular 
time  and  place  to  testify  as  a  witness.  It  may  also 
require  him  to  bring  with  him  any  books,  documents, 
or  other  things  under  his  control  which  he  is  bound 


^1,  SUBPCENAS  AND  CITATIONS.  §  1 37 

by  law  to  produce  in  evidence,"  in  which  last  case  it 
is  termed  a  subpoena  duces  tecum.  [California. 
Code  Civ.  Froc,  sec.  1985.) 


CIVIL  SUBPCENA. 

§  137.  Civil  subpoena — By  whom  issued.  A  sub- 
poena in  a  civil  action  or  proceeding  is  issued  as  fol- 
lows : — 

"i.  To  require  attendance  before  a  court,  or  at 
the  trial  of  an  issue  therein,  it  is  issued  under  the  seal 
of  the  court  before  which  the  attendance  is  required, 
or  in  which  the  issue  is  pending. 

"2.  To  require  attendance  out  of  the  court,  before 
a  judge,  justice  or  other  officer  authorized  to  ad- 
minister oaths  or  take  testimony  in  any  matter  under 
the  laws  of  this  state,  it  is  issued  by  the  judge,  justice 
or  any  other  officer  before  whom  the  attendance  is 
required. 

"3.  To  require  attendance  before  a  commissioner 
appointed  to  take  testimony  by  a  court  of  a  foreign 
country,  or  of  the  United  States,  or  of  any  other  state 
in  the  United  States,  or  of  any  other  district  or  county 
within  this  state,  or  before  any  officer  or  officers  em- 
powered by  the  laws  of  the  United  States  to  take 
testimony,  it  may  be  issued  by  any  judge  or  justice 
of  the  peace  in  places  within  their  respective  juris- 
diction, with  like  power  to  enforce  attendance;  and, 
upon  certificate  of  contumacy  to  said  court,  to  punish 
contempt  of  their  process,  as  such  judge  or  justice 
could  exercise  if  the  subpoena  directed  the  attend- 
ance of  the  witness  before  their  courts  in  a  matter 
pending  therein."  (California.  Code  Civ.  Proc, 
sec.  1986.) 


§§  138-140         SHERIFFS   AND   CONSTABLES.  74 

§  138.  Issuance  by  justice  of  peace.  "Justices 
of  the  peace  may  issue  subpoenas  in  any  action  or 
proceeding  in  the  courts  held  by  them,  and  final 
process  on  any  judgment  recovered  therein,  to  any 
part  of  the  county."  (California.  Code  Civ.  Proc, 
sec.  919.) 

§  139.  May  be  issued  with  blank.  "The  sum- 
mons, execution,  and  every  other  paper  made  or 
issued  by  a  justice,  except  a  subpoena,  must  be  issued 
without  a  blank  left  to  be  filled  by  another,  otherwise 
it  is  void."     [California.     Code  Civ.  Proc,  sec.  920.) 

§  140.  How  served — Witness  fees.  "The  serv- 
ice of  a  subpoena  (in  civil  proceedings)  is  made  by 
showing  the  original  and  delivering  a  copy,  or  a 
ticket  containing  its  substance  to  the  witness  person- 
ally, giving  or  offering  to  him  at  the  same  time,  if 
demanded  by  him,  the  fees  to  which  he  is  entitled 
for  travel  to  and  from  the  place  designated,  and  one 
day's  attendance  there.  The  service  must  be  made 
so  as  to  allow  the  witness  a  reasonable  time  for  prep- 
aration and  travel  to  the  place  of  attendance.  Such 
service  may  be  made  by  any  person."  (California. 
Code  Civ.  Proc,  sec.  1987.) 

In  California  witnesses  are  allowed,  for  attending 
in  any  civil  suit  or  proceeding,  before  any  court  of 
record,  referee,  commissioner,  or  justice  of  the  peace, 
for  each  day,  two  dollars;  for  traveling  to  the  place 
of  the  trial,  for  each  mile,  twenty  cents,  excepting 
for  witnesses  before  a  justice  of  the  peace  in  Mon- 
terey County,  in  civil  cases,  who  are  entitled  to  two 
dollars  per  day,  but  no  mileage.  In  case  of  impeach- 
ment and  contested  elections,   for  traveling  to  the 


75  SUBPCENAS  AND   CITATIONS.       §§  141,  142 

place  of  trial,  ten  cents  per  mile.  (Stats.  1869- 1870, 
pp.  178,  179.) 

"Witnesses  summoned  to  testify  on  behalf  of  the 
county  in  matters  of  public  concern  before  the  board 
of  supervisors  are  not  entitled  to  have  their  fees  pre- 
paid; but  the  board  must  allow  them  reasonable  com- 
pensation for  the  expenses  of  their  attendance." 
(County  Govt.  Act,  sees.  32,  33;  Stats.  1893,  p.  361  ; 
Pol.  Code,  sec.  4069.) 

§  141.    Failure  to  pay  or  tender  witness  fees.    No 

person  shall  be  obliged  to  attend  and  testify  in  a 
civil  action,  unless  his  fees  shall  have  been  tendered, 
or  he  shall  have  not  demanded  the  same.  (Califor- 
nia.    Code  Civ.  Proc,  sec.  1987.) 

§  142.  Witness  on  behalf  of  the  state.  Sections 
43  and  44  of  an  act  to  regulate  fees,  approved  March 
5,  1870,  (California)  provides  as  follows: — 

"The  attorney-general,  or  any  district  attorney,  is 
authorized  to  cause  subpoenas  to  be  issued,  and  com- 
pel the  attendance  of  witnesses  on  behalf  of  the  state, 
without  paying  or  tendering  fees  in  advance,  to 
either  officers  or  witnesses;  and  any  witness  refusing 
or  failing  to  attend,  after  being  served  with  a  sub- 
poena, may  be  proceeded  against,  and  shall  be  liable 
in  the  same  manner  as  is  provided  by  law  in  other 
cases  where  fees  have  been  tendered  or  paid. 

"The  clerk  of  any  court  before  which  any  witness 
shall  have  attended  on  behalf  of  the  state,  in  any 
civil  action,  shall  give  to  such  witness  a  certificate, 
under  seal,  of  travel  and  attendance,  which  shall  en- 
title him  to  receive  the  same  from  the  state  treasury 
on  the  controllers  warrant."  (California.  Stats. 
1869-1870,  p.  180.    See,  also.  Pen.  Code,  sec.  1326.) 


§§  143,  144       SHERIFFS  AND  CONSTABLES.  76 

§  143.    Production  of  prisoner  as  witness.    "If  the 

witness  be  a  prisoner,  confined  in  a  jail  or  prison 
within  this  state,  an  order  for  his  examination  in  the 
prison  upon  deposition,  or  for  his  temporary  removal 
and  production  before  a  court  or  officer,  for  the  pur- 
pose of  being  orally  examined,  may  be  made  as  fol- 
lows: (i)  By  the  court  itself  in  which  the  action  or 
special  proceeding  is  pending,  unless  it  be  a  justice's 
court;  (2)  By  a  justice  of  the  supreme  court,  or  a 
judge  of  the  superior  court  of  the  county  where  the 
action  or  proceeding  is  pending,  if  pending  before 
a  justice's  court,  or  before  a  judge  or  other  person 
out  of  court.  Such  order  can  only  be  made  on  the 
motion  of  a  party,  upon  affidavit  showing  the  nature 
of  the  action  or  proceeding,  the  testimony  expected 
from  the  witness,  and  its  materiality.  If  the  witness 
be  imprisoned  in  the  county  where  the  action  or  pro- 
ceeding is  pending,  his  production  may  be  required. 
In  all  other  cases,  his  examination,  when  allowed, 
must  be  taken  upon  deposition."  {California.  Code 
Civ.  Proc,  sees.  1995- 1997.) 

§  144.  Witness  before  supervisors.  In  Califor- 
nia provision  is  made  for  the  issuance  of  a  subpoena 
by  the  chairman  of  the  board  of  supervisors,  com- 
manding the  witness  to  appear  before  the  board. 
This  subpoena  is  to  be  served  by  the  sherifif,  and  for 
disobedience  thereto  the  witness  may  be  arrested  by 
attachment  issued  by  a  judge  of  the  superior  court, 
who  may  impose  the  same  penalties  as  in  case  of  a 
witness  subpoenaed  to  appear  and  give  evidence  on 
the  trial  of  a  civil  cause  before  a  superior  court. 
{California.     County  Govt.  Bill,  sees.  28,  29.) 


'J^  SUBPCENAS  AND  CITATIONS.       §§  1 45- 1 48 

§  145.    Witness  out  of  county — Attendance.     "A 

witness  is  not  obliged  to  attend  as  a  witness  before 
any  court,  judge,  justice,  or  any  other  officer,  out  of 
the  county  in  which  he  resides  (in  civil  proceedings) , 
unless  the  distance  be  less  than  thirty  miles  from  his 
place  of  residence  to  the  place  of  trial."  {California. 
Code  Civ.  Proc,  sec.  1989.) 

§  146.  Concealed  witness.  "If  a  witness  is  con- 
cealed in  a  building  or  vessel,  so  as  to  prevent  the 
service  of  a  subpoena  upon  him,  any  court  or  judge, 
or  any  officer  issuing  a  subpoena,  may,  upon  proof 
by  affidavit  of  the  concealment,  and  of  the  materiality 
of  the  witness,  make  an  order  that  the  sherifif  of  the 
county  serve  the  subpoena;  and  the  sherifif  must  serve 
it  accordingly,  and  for  that  purpose  may  break  into 
the  building  or  vessel  where  the  witness  is  concealed." 
(California.     Code  Civ.  Proc,  sec.  1988.) 

§  147.  Witness  protected  from  arrest.  "Every 
person  who  has  been,  in  good  faith,  served  with  a 
subpoena  to  attend  as  a  witness  before  a  court,  judge, 
commissioner,  referee  or  other  person,  in  a  case  where 
the  disobedience  of  the  witness  may  be  punished  as 
a  contempt,  is  exonerated  from  arrest  in  a  civil  action 
while  going  to  the  place  of  attendance,  necessarily 
remaining  there  and  returning  therefrom."  {Califor- 
nia.    Code  Civ.  Proc,  sec  2067.) 

§  148.  When  arrest  of  witness  is  void.  "The 
arrest  of  a  witness,  contrary  to  the  preceding  section, 
is  void,  and  when  willfully  made,  is  a  contempt  of 
the  court;  and  the  person  making  it  is  responsible 
to  the  witness  arrested  for  double  the  amount  of  the 


§§  149,  150       SHERIFFS  AND  CONSTABLES.  78 

damages  which  may  be  assessed  against  him,  and  is 
also  liable  to  an  action  at  the  suit  of  the  party  serving 
the  witness  with  a  subpoena,  for  the  damages  sus- 
tained by  him  in  consequence  of  the  arrest."  {Cali- 
fornia.   Code  Civ.  Proc,  sec.  2068.) 

§  149.    Liability  of  officer  for  detention  of  witness. 

"An  officer  is  not  liable  to  the  party  for  making  the 
arrest  in  ignorance  of  the  facts  creating  the  exonera- 
tion, but  is  liable  for  any  subsequent  detention  of  the 
party,  if  such  party  claim  the  exemption  and  make 
an  affidavit  stating: — 

"i.  That  he  has  been  served  with  a  subpoena  to 
attend  as  a  witness  before  a  court,  officer,  or  other 
person,  specifying  the  same,  the  place  of  attendance 
and  the  action  or  proceeding  in  which  the  subpoena 
was  issued;  and, 

"2.  That  he  has  not  thus  been  served  by  his  own 
procurement,  with  the  intention  of  avoiding  an 
arrest; 

"3.  That  he  is  at  the  time  going  to  the  place  of 
attendance,  or  returning  therefrom,  or  remaining 
there  in  obedience  to  the  subpoena. 

"The  affidavit  may  be  taken  by  the  officer,  and 
exonerates  him  from  liability  for  discharging  the 
witness  when  arrested."  {California.  Code  Civ. 
Proc,  sec.  2069.) 

§  150.    Discharge  of  witness  from  arrest.     The 

court  or  officer  issuing  the  subpoena,  and  the  court  or 
officer  before  whom  the  attendance  is  required,  may 
discharge  the  witness  from  an  arrest  made  during 
the  time  he  is  exempt  {sec.  147  ante).  If  the  court 
have  adjourned  before  the  arrest,  or  before  applica- 


79  SUBPCENAS  AND  CITATIONS.       §§  15 1,  152 

tion  for  the  discharge,  a  judge  of  the  court  may  grant 
the  discharge.  {California.  Code  Civ.  Proc,  sec. 
2070. ) 

§  151.     Arrest    and    commitment    for    contempt. 

^'Disobedience  to  a  subpoena,  or  a  refusal  to  be  sworn, 
or  to  answer  as  a  witness,  or  to  subscribe  an  affidavit 
or  deposition  when  required,  may  be  punished  as  a 
contempt  by  the  court  or  officer  issuing  the  subpoena 
or  requiring  the  witness  to  be  sworn;"  and  "every 
warrant  to  arrest  or  commit  a  witness  must  be  di- 
rected to  the  sheriff  of  the  county  where  the  witness 
may  be,  and  must  be  executed  by  him  in  the  same 
manner  as  process  issued  by  the  superior  court." 
{California.     Code  Civ.  Proc,  sees.  1991,  1994. 

CRIMINAL  SUBPCENA. 

§152.    Criminal  subpoena — By  whom  issued.     In 

California  a  subpoena  in  any  criminal  proceeding 
may  be  signed  and  issued  by: — 

"i.  A  magistrate  before  whom  an  information  is 
laid,  for  witnesses  in  the  state,  either  on  behalf  of 
the  people  or  of  the  defendant. 

"2.  The  district  attorney,  for  witnesses  in  the  state, 
in  support  of  the  prosecution,  or  for  such  other  wit- 
nesses as  the  grand  jury,  upon  an  investigation  pend- 
ing before  them,  may  direct. 

"3.  The  district  attorney,  for  witnesses  in  the  state, 
in  support  of  an  indictment  to  appear  before  the 
court  in  which  it  is  to  be  tried. 

''4.  The  clerk  of  the  court  in  which  the  indictment 
is  to  be  tried;  and  he  must,  at  any  time,  upon  appli- 
cation of  the  defendant,  and  without  charge,  issue  as 


§§  153-155       SHERIFFS  AND  CONSTABLES.  80 

many  blank  subpoenas,  subscribed  by  him  as  clerk, 
for  witnesses  in  the  state,  as  the  defendant  may  re- 
quire/'     {California.     Pen.  Code,  sec.  1326.) 

§  153,  By  whom  and  how  served.  "A  subpoena 
may  be  served  by  any  person,  but  a  peace  officer  must 
serve  in  his  county  any  subpoena  delivered  to  him 
for  service,  either  on  the  part  of  the  people  or  of 
the  defendant,  and  must,  without  delay,  make  a  writ- 
ten return  of  the  service,  subscribed  by  him,  stating 
the  time  and  place  of  service.  The  service  is  made 
by  delivering  a  copy  of  the  subpoena  to  the  witness, 
and  if  he  so  requests,  showing  him  the  original  and 
informing  him  of  the  contents.  (California.  Pen. 
Code,  sec.  1328.) 

§  154.     Production   of   prisoner   as   witness.      In 

California  provision  is  made  for  the  removal  of  a 
prisoner  from  the  state  prison  or  the  county  jail  of 
another  county  upon  order  of  any  court  of  record  or 
judge  thereof  when  his  testimony  is  required  in  a 
criminal  action;  and  the  sheriff  is  required  to  execute 
such  order.      (California.    Pen.  Code,  sec.   1333.) 

§155.  Witness  out  of  county — Attendance.  "No 
person  is  obliged  to  attend  as  a  witness  before  a  court 
or  magistrate  out  of  the  county  where  the  witness 
resides  or  is  served  with  the  subpoena,  unless  the 
judge  of  the  court  in  which  the  offense  is  triable,  or 
a  justice  of  the  supreme  court,  or  a  superior  court 
judge,  upon  an  affidavit  of  the  district  attorney  or 
prosecutor,  or  of  the  defendant  or  his  counsel,  stating 
that  he  believes  the  evidence  of  the  witness  is  material 
and  his  attendance  at  the  examination  or  trial  nee- 


8 1  SUBPCEXAS  AND   CITATIOxXS.       §§  1 56- 1 58 

essary,  shall  indorse  on  the  subpoena  an  order  for 
the  attendance  of  the  witnesses."  (California.  Pen. 
Code,  sec.  1330.) 

§  156.  Expense  of  witness.  "When  a  person 
attends  before  a  magistrate,  grand  jury,  or  court,  as 
a  witness  in  a  criminal  case,  upon  a  subpoena,  or  in 
pursuance  of  an  undertaking,  and  it  appears  that  he 
has  come  from  a  place  outside  of  the  county,  or  that 
he  is  poor  and  unable  to  pay  the  expenses  of  such 
attendance,  the  court,  at  its  discretion,  if  the  attend- 
ance of  the  witness  be  upon  a  trial,  by  an  order  upon 
its  minutes,  or,  in  any  other  case,  the  judge,  at  his 
discretion,  by  a  written  order,  may  direct  the  county 
auditor  to  draw^  his  warrant  upon  the  county  treas- 
urer in  favor  of  the  witness  for  a  reasonable  sum,  to 
be  specified  in  the  order,  for  the  necessary  expenses 
of  the  witness."     (California.    Pen.  Code,  sec.  122().) 


CITATION. 

§  157.  Citation  defined.  A  citation  is  a  direction 
issued  by  the  clerk  of  a  court  of  record  under  seal  of 
the  court,  requiring  the  person  cited  to  appear  at 
a  time  and  place  specified.  (California.  Code  Civ. 
Proc,  sec.  ijoj.) 

§  158.  Service  of  citation.  A  citation  must  be 
served  in  the  same  manner  as  a  summons  in  a  civil 
action,  and  must  be  served  at  least  five  davs  before 
the  return  day  thereof.  (California.  Code  Civ. 
Proc,  sees.  1709,  171 1.) 


CHAPTER  VI. 

ARREST  AND  BAIL. 

59.  Restrictions  v:pon  imprisonment  in  civil  actions. 

60.  Arrest  for  fraud. 

61.  The  order  of  arrest. 

62.  Temporary  exemptions  from  arrest. 

63.  Remedy,  when  appHcable. 

64.  Void  order  of  arrest. 

65.  Service  of  order  of  arrest. 

66.  Sheriff's  expenses. 

6y.  Failure  to  pay  expenses. 

68.  When  defendant  may  be  discharged. 

69.  Surrender  of  defendant. 

70.  Liability  of  sheriff  and  sureties. 

71.  Liable  for  permitting  an  escape. 

72.  Liable  for  a  rescue. 

73.  No  action  for  escape  or  rescue  after  recapture. 

74.  Exception  to  sureties. 

75.  Justification  of  sureties. 

76.  Deposit  of  bail  money. 
'j'j.  Sheriff  liable  for  escape. 
78.  Discharge  final. 


§  159.    Restrictions   upon   imprisonment   in   civil 

actions.  The  constitutions  of  nearly  all  the  states 
contain  a  provision  similar  to  that  in  the  declaration 
of  rights  of  the  constitution  of  California,  to  wit:  that 
"no  person  shall  be  imprisoned  for  debt  in  any  civil 
action,  on  mesne  or  final  process,  except  in  cases  of 
fraud,  nor  in  civil  actions  for  torts,  except  in  cases 
of  willful  injury  to  person  or  property;  and  no  per- 
son shall  be  imprisoned  for  a  militia  fine  in  time  of 
peace."     [California.    Const.,  art.  I,  sec.  i^.) 


83  ARREST   Ax\D   BAIL.  §§  160,  l6r 

§  160.  Arrest  for  fraud.  Provision  is  usually 
made  by  statute,  more  or  less  similar  to  that  in  force 
in  California,  which  provides  for  the  arrest  of  the 
defendant  in  a  civil  suit,  in  the  following  cases :  "  ( i ) 
In  an  action  for  the  recovery  of  money  or  damages  on 
a  cause  of  action  arising  upon  contract,  express  or 
implied,  when  the  defendant  is  about  to  depart  from 
the  state  with  intent  to  defraud  his  creditors;  (2)  in 
an  action  for  a  fine  or  penalty,  or  for  money  or  prop- 
erty embezzled,  or  fraudulently  misapplied,  or  con- 
verted to  his  own  use,  by  a  public  officer,  or  an  officer 
of  a  corporation,  or  an  attorney,  factor,  broker,  agent, 
or  clerk,  in  the  course  of  his  employment  as  such,  or 
by  any  other  person  in  a  fiduciary  capacity;  or  for 
misconduct  or  neglect  in  office  or  in  a  professional 
employment,  or  for  a  willful  violation  of  duty;  (3) 
in  an  action  to  recover  the  possession  of  personal 
property  unjustly  detained,  when  the  property,  or  any 
part  thereof,  has  been  concealed,  removed,  or  dis- 
posed of,  to  prevent  its  being  found  or  taken  by  the 
sherifif;  (4)  when  the  defendant  has  been  guilty  of  a 
fraud  in  contracting  the  debt  or  incurring  the  obliga- 
tion for  which  the  action  is  brought;  or  in  concealing 
or  disposing  of  the  property  for  the  taking,  detention, 
or  conversion  of  which  the  action  is  brought;  (5) 
when  the  defendant  has  removed  or  disposed  of  his 
property,  or  is  about  to  do  so,  with  intent  to  defraud 
his  creditors."  {California.  Code  Civ.  Proc,  sec. 
479-) 

§  161.  The  order  of  arrest.  The  order  for  the 
arrest  must  be  obtained  from  the  judge  of  the  court 
in  which  the  action  is  brought,  and  is  made  up.>T  the 
affidavit  of  the  plaintiff  or  some  other  persop;  and 


§§  1 62,  163       SHERIFFS   AND   CONSTABLES.  84 

must  require  the  sheriff  of  the  county  where  the  de- 
fendant may  be  found  forthwith  to  arrest  him  and 
hold  him  to  bail  in  a  specified  sum.  {California. 
Code  Civ.  Proc,  sees.  480-483.) 

§  162.    Temporary  exemptions   from  arrest.      In 

California,  the  constitution  provides  that  "electors 
shall  in  all  cases,  except  treason,  felony,  or  breach  of 
the  peace,  be  privileged  from  arrest  on  the  days  of 
election,  during  their  attendance  at  such  election,  go- 
ing to  and  returning  therefrom"  {art.  II,  sec.  2),  and 
that  "members  of  the  legislature  shall,  in  all  cases, 
except  treason,  felony,  and  breach  of  the  peace,  be 
privileged  from  arrest,  and  shall  not  be  subject  to 
any  civil  process  during  the  session  of  the  legislature, 
nor  for  fifteen  days  next  before  the  commencement 
and  after  the  termination  of  each  session."  {Art.  IV, 
sec.  2.) 

"No  person  belonging  to  the  military  forces  is 
subject  to  arrest  on  civil  process  while  going  to,  re- 
maining at,  or  returning  from,  any  place  at  which 
he  may  be  required  to  attend  for  military  duty." 
{California.    Pol.  Code,  sec.  2021.) 

"Every  person  who  has  been,  in  good  faith,  served 
with  a  subpoena  to  attend  as  a  witness  before  a  court, 
judge,  commissioner,  referee,  or  other  person,  in  a 
case  where  the  disobedience  of  the  witness  may  be 
punished  as  a  contempt,  is  exonerated  from  arrest  in 
a  civil  action  while  going  to  the  place  of  attendance, 
necessarily  remaining  there,  and  returning  there- 
from."     {California.     Code  Civ.  Proc,  sec.  2067.) 

§  163.  Remedy,  when  applicable.  To  entitle  the 
party  to  the   remedy  of  arrest,   it  is  not  necessary 


85  ARREST  AND    BAIL.  §§  1 64,  1 65 

that  he  should  know  the  commission  of  a  fraud.  It 
is  sufficient,  if  the  circumstances  detailed  would 
induce  a  reasonable  belief  that  a  fraud  was  intended. 
{Southivorth  v.  Resing,  3  Cal.  377.) 

A  fraud  merely  constructive,  not  involving  moral 
guilt,  is  not  ground  of  arrest.  A  partner  is  not  liable 
to  arrest  on  the  ground  of  fraud  committed  by  his 
copartners  in  contracting  the  partnership  debt  on 
which  the  action  is  brought,  in  the  absence  of  proof 
that  he  knew  of  such  fraud,  or  that  he  in  some  way 
ratified  the  transaction.  But  an  officer  is  not  pre- 
sumed to  know  the  nature  of  the  evidence  relied  upon 
by  the  plaintifif  to  prove  his  case;  it  is  sufficient  for 
him  to  know  that  the  process  is  regular  on  its  face, 
to  warrant  him  in  serving  it.  Whatever  may  be  the 
defect  in  the  affidavit  upon  which  the  order  of  arrest 
is  issued,  the  order  itself,  if  regular  on  its  face,  will 
protect  the  officer  in  executing  it.  It  was  so  held  in 
Dusy  V.  Helm,  59  Cal.  189,  and  section  4187  of  the 
Political  Code  was  cited  by  the  court  as  statutory 
authority  for  the  decision. 

§  164.  Void  order  of  arrest.  Where  the  com- 
plaint was  not  filed  until  two  days  after  an  order  of 
arrest  had  issued  thereon,  it  was  held  in  Ex  parte 
Cohen,  6  Cal.  318,  that  the  order  of  arrest  was  void. 

§  165.  Service  of  order  of  arrest.  Upon  receipt 
of  an  order  of  arrest,  with  a  copy  of  the  affidavit 
upon  which  it  is  made,  the  sheriff  must  arrest  the 
defendant  and  keep  him  in  custody  until  discharged 
by  law.  On  making  the  arrest,  the  officer  must  de- 
liver to  the  defendant  a  copy  of  the  affidavit,  and 
also,  if  he  desire  it,  a  copy  of  the  order  of  arrest. 
(California.     Code  Civ.  Proc,  sec.  484.) 


§§  1 66,  167       SHERIFFS  AND  CONSTABLES.  86 

§  166.  Sheriff's  expenses.  In  California  it  is 
provided  by  the  Penal  Code  that  "whenever  a  per- 
son is  committed  upon  process  in  a  civil  action  or 
proceeding,  except  when  the  people  of  this  state  are 
a  party  thereto,  the  sheriff  is  not  bound  to  receive 
such  person,  unless  security  is  given  on  the  part  of 
the  party  at  whose  instance  the  process  is  issued,  by 
a  deposit  of  money,  to  meet  the  expenses  for  him  of 
necessary  food,  clothing,  and  bedding,  or  to  detain 
such  person  any  longer  than  these  expenses  are  pro- 
vided for.  This  section  does  not  apply  to  cases  where 
a  party  is  committed  as  a  punishment  for  disobedience 
to  the  mandates,  process,  writs  or  order  of  court." 
(Pen.  Code,  sec.  1612.) 

The  Code  of  Civil  Procedure  also  provides  that 
"whenever  a  person  is  committed  to  jail  on  an  execu- 
tion issued  on  a  judgment  recovered  in  a  civil  action, 
the  creditor,  his  agent  or  attorney,  must  advance  to 
the  jailer,  on  such  commitment,  sujfificient  money  for 
the  support  of  the  prisoner  for  one  week,  and  must 
make  the  like  advance  for  every  successive  week  of 
his  imprisonment,  and  in  case  of  failure  to  do  so,  the 
jailer  must  forthwith  discharge  such  prisoner  from 
custody;  and  such  discharge  has  the  same  efifect  as 
if  rnade  by  order  of  the  creditor."  {California. 
Code  Civ.  Proc,  sec.   1154.) 

§  167.  Failure  to  pay  expenses.  If  a  judgment 
is  rendered  against  a  defendant  in  a  civil  action,  con- 
victing him  of  fraud,  and  he  is  imprisoned  on  an 
execution  issued  thereon,  the  failure  of  the  plaintiff 
to  make  a  weekly  advance  to  the  jailer,  of  money 
sufficient  for  the  support  of  the  prisoner,  does  not 
per  se  operate  a  discharge  of  the  defendant.     If  the 


87  ARREST  AND   BAIL.  §§  1 68- I/O 

prisoner  is  adequately  supported  by  the  jailer,  and 
the  latter  is  willing  to  trust  the  creditor  for  reim- 
bursement, the  purpose  of  the  statute  is  satisfied.  {Ex 
parte  Lamson,  50  Cal.  306.) 

§168.    When  defendant  may  be  discharged.   The 

sheriff  may  discharge  the  defendant  at  any  time  upon 
written  instructions  to  that  effect,  signed  by  the  plain- 
tiff. And  the  defendant,  at  any  time  before  execu- 
tion, must  be  discharged  from  the  arrest  either  upon 
giving  bail,  as  required  by  the  statute,  or  upon  de- 
positing the  amount  mentioned  in  the  order  of  arrest. 
(California.  Code  Civ.  Proc,  sec.  486.)  A  party 
will  be  discharged  from  arrest  where  the  process, 
though  proper  in  form,  has  been  issued  in  an  im- 
proper case.     (Soule  v.  Hayward,  i  Cal.  345.) 

§  169.  Surrender  of  defendant.  At  any  time  be- 
fore judgment,  or  within  ten  days  thereafter,  the  bail 
may  surrender  the  defendant  in  their  exoneration; 
or  he  may  surrender  himself  to  the  sheriff  of  the 
county  where  he  was  arrested.  For  the  purpose 
of  surrendering  the  defendant,  the  bail,  at  any  time 
or  place  before  they  are  finally  charged,  may  them- 
selves arrest,  or,  by  a  written  authority  indorsed  on 
a  certified  copy  of  the  undertaking,  may  empower 
the  sheriff  to  do  so.  A  certified  copy  of  the  under- 
taking may  be  obtained  from  the  clerk  of  the  court 
in  which  the  action -is  brought.  {California.  Code 
Civ.  Proc,  sees.  488,  489.) 

§  170.  Liability  of  sheriff  and  sureties.  \A^here 
a  defendant  has  been  allowed  to  go  at  large  on  bail, 
and  an  attempt  is  made  to  surrender  him,  either  by 


§  170  SHERIFFS  AND  CONSTABLES.  88 

himself  or  by  his  sureties,  the  officer  should  take  heed 
lest  he  make  himself  liable  to  the  plaintifif  by  re- 
ceiving the  defendant  into  custody  and  thereby  exon- 
erate the  sureties.  In  the  case  of  Allen  v.  Breslauer, 
8  Cal.  552,  in  an  action  on  a  bail  bond  executed  by 
the  defendants  as  sureties  for  one  Pinover,  the  plain- 
tifif obtained  judgment  against  Pinover.  There  was 
no  surrender  of  defendant,  nor  any  execution  issued 
within  ten  days  after  judgment.  After  the  expiration 
of  ten  days,  an  execution  was  issued  against  the  body 
of  Pinover,  and  placed  in  the  hands  of  the  sherifif. 
On  the  same  day  Pinover  called  on  the  sherifif,  and 
ofifered  to  surrender  himself  in  discharge  of  his  sure- 
ties. But  the  sherifif,  acting  under  plaintifif's  instruc- 
tions, refused  to  take  him  into  custody.  Afterwards 
defendants  went  with  Pinover  to  the  sherifif,  for  the 
purpose  of  giving  him  in  custody,  when  he  refused 
to  receive  him.  The  court  below  entered  judgment 
for  plaintifif,  but,  on  appeal,  the  supreme  court  re- 
versed the  judgment,  filing  an  opinion  which  is  here 
given  in  full:; — 

"The  question  presented  is  whether,  under  this  state 
of  facts,  defendants  are  liable.  We  think  not.  The 
legislature,  when  providing  for  the  surrender  of  de- 
fendant within  ten  days  after  judgment,  evidently 
contemplated  that  the  plaintifif  should  take  such 
measures  as  would  authorize  the  officer  to  hold  de- 
fendant in  custody.  'The  law  requires  no  man  to  do 
a  vain  thing,'  is  a  familiar  maxim,  and  certainly  it 
would  be  in  vain  to  require  a  party  to  surrender  to  an 
officer  having  no  power  to  detain  him.  The  con- 
struction contended  for  by  plaintifif  would  enable  a 
defendant  to  release  his  sureties  by  a  surrender  before 
execution,  and  then  at  once  be  released  on  habeas 


S9  ARREST  AND   BAIL.  §§  171,  172 

corpus,  on  the  ground  that  he  was  illegally  in  cus- 
tody. Such  a  result  was  never  intended  by  the  legis- 
lature, and  we  are  of  opinion  that  a  surrender  within 
ten  days  after  execution  is  a  sufficient  compliance 
with  the  will  of  the  legislature.  Judgment  re- 
versed." 

§  171.     Liable    for    permitting    an    escape.      "A 

sheriff  who  suffers  the  escape  of  a  person  arrested 
in  a  civil  action,  without  the  consent  or  connivance 
of  the  party  in  whose  behalf  the  arrest  or  imprison- 
ment was  made,  is  liable  as  follows: — 

"i.  When  the  arrest  is  upon  an  order  to  hold  to 
bail  or  upon  surrender  in  exoneration  of  bail  before 
judgment,  he  is  liable  to  the  plaintiff  as  bail. 

"2.  When  the  arrest  is  on  an  execution  or  commit- 
ment to  enforce  the  payment  of  money,  he  is  liable 
for  the  amount  expressed  in  the  execution  or  commit- 
ment. 

"3.  When  the  arrest  is  on  an  execution  or  com- 
mitment other  than  to  enforce  the  payment  of  money, 
he  is  liable  for  the  actual  damages  sustained. 

"4.  Upon  being  sued  for  damages  for  an  escape  or 
rescue,  he  may  introduce  evidence  in  mitigation  and 
exculpation."  {California.  County  Govt.  Bill,  sec. 
99;  Stats.   1893,  p.  372;  Pol.  Code,  sec.  4182.) 

§  172.  Liable  for  a  rescue.  The  sheriff  is  liable 
for  a  rescue  of  a  person  arrested  in  a  civil  action 
equally  as  for  an  escape.  (California.  County  Govt. 
Bill,  sec.  100;  Stats.  1893,  P-  373;  Pol.  Code,  sec. 
4183-) 


§§  173-175       SHERIFFS  AND  CONSTABLES.  90 

§  173.  No  action  for  escape  or  rescue  after  re- 
capture. "An  action  cannot  be  maintained  against 
the  sheriff  for  a  rescue,  or  for  an  escape  of  a  person 
arrested  upon  an  execution  or  commitment,  if,  after 
his  rescue  or  escape  and  before  the  commencement 
of  the  action,  the  prisoner  returns  to  the  jail,  or  is 
retaken  by  the  sheriff."  (California.  County  Govt. 
Bill,  sec.    lOi  ;  Stats.    1893,  p.   373;  Pol.   Code,  sec. 

4184.) 

§  174.  Exception  to  sureties.  "Within  the  time 
limited  for  that  purpose,  the  sheriff  must  file  the 
order  of  arrest  with  the  clerk,  with  his  return,  to- 
gether with  a  copy  of  the  undertaking.  The  original 
undertaking  he  must  retain,  until  the  sureties  justify, 
if  they  are  required  to  do  so.  The  plaintiff,  within 
ten  days  thereafter,  may  senx  upon  the  sheriff  a 
notice  that  he  does  not  accept  the  bail,  or  he  is 
deemed  to  have  accepted  them,  and  the  sheriff  is 
exonerated  from  liability.  If  no  notice  be  served 
within  ten  days,  the  original  undertaking  must  be 
filed  with  the  clerk  of  the  court."  (California.  Code 
Civ.  Proc,  sec.  492.) 

§  175.  Justification  of  sureties.  "Within  five 
days  after  the  receipt  of  notice,  the  sheriff  or  defend- 
ant may  give  to  the  plaintiff',  or  his  attorney,  notice 
of  the  justification  of  the  same,  or  other  bail  (speci- 
fying the  places  of  residence  and  occupations  of  the 
latter),  before  a  judge  of  the  court,  or  county  clerk, 
at  a  specified  time  and  place,  the  time  to  be  not  less 
than  five  nor  more  than  ten  days  thereafter,  except 
by  consent  of  parties.  In  case  other  bail  be  given, 
there  must  be  a  new  undertaking."     If  the  bail  is 


91  ARREST  AND  BAIL.  §§  1 76- 1 78 

found  to  be  sufficient,  the  sheriff  is  thereupon  exon- 
erated from  liability.     (California.    Code  Civ.  Proc, 

sees.  493,  496.) 

§  176.  Deposit  of  bail  money.  In  case  the 
amount  of  bail  be  reduced,  the  defendant  may  de- 
posit such  amount  instead  of  giving  bail.  When 
money  is  deposited,  the  sheriff  must  give  the  defend- 
ant a  certificate  of  the  deposit  made,  discharge  the 
defendant  from  custody,  immediately  pay  the  deposit 
into  court,  and  take  from  the  clerk  receiving  the 
same  two  certificates  of  such  payment,  the  one  of 
which  he  shall  deliver  to  the  plaintiff's  attorney,  and 
the  other  to  the  defendant.  [California.  Code  Civ. 
Proc.,  sees.  497,  498.) 

§  177.  Sheriff  liable  for  escape.  "If,  after  being 
arrested,  the  defendant  escape  or  is  rescued,  the 
sheriff  is  liable  as  bail,  but  he  may  discharge  him- 
self from  such  liability  by  giving  bail  at  any  time 
before  judgment."  (California.  Code  Civ.  Proc., 
sec.  501.     See,  also,  Pol.  Code,  sec.  4182.) 

§  178.  Discharge  final.  Where  a  party  is  once 
arrested  and  discharged,  he  cannot  be  arrested  again 
in  the  same  action.  (McGilvery  v.  Moorhead,  2  Cal. 
609.) 


CHAPTER  VIL 

CLAIM   AXD  DELIVERY. 

§  179.  Affidavit  and  order  to  sheriff. 

§  180.  Taking  the  property. 

§181.  Justification  and  retaking  property. 

§  182.  Replevin  from  officer  holding  under  levy. 

§  183.  Officer  responsible  until  sureties  justify. 

§  184.  Notice  of  justification. 

§  185.  Care  of  property  in  replevin. 

§  186.  How  property  taken  when  concealed. 

§  187.  Plaintiff's  possession  only  temporary. 

§  188.  Property  to  be  segregated. 

I  189.  Claim  of  property  by  third  person. 

§  190.  Sheriff'  is  liable  for  taking  property  of  stranger. 

§  191.  Bond  of  indemnity  to  sheriff. 

§  192.  Correction  of  valuation  of  property. 

§  193.  Form  of  judgment. 

§  194.  Judgment  to  be  in  the  alternative. 

§  195.  When  judgment  for  damages  alone  proper. 

§  196.  Particular  description  of  property. 

§  197.  Partial  delivery  of  property. 

§  198.  Property  lost  through  act  of  God. 

§  199.  Attachment  lien  in  replevin. 

§  200.  Attempted  replevin  from  sheriff. 

§  179.  Affidavit  and  order  to  sheriff.  The  duties 
of  sheriffs  and  constables  in  taking,  keeping,  and 
delivering  property  in  replevin  under  the  practice 
in  California,  which  is  substantially  the  same  as  pre- 
vails throughout  the  Pacific  states,  are  laid  down  in 
sections  609  to  620  of  the  Code  of  Civil  Procedure. 

The  papers  requisite  to  authorize  the  officer  are: 
An  affidavit  made  by  the  plaintiflf  or  some  one  in 


93  CLAIM    AXD   DELIVERY.  §  l8o 

his  behalf,  showing  that  the  plaintiff  is  the  owner  of 
the  property  claimed  (particularly  describing  it),  or 
is  entitled  to  the  possession  thereof;  that  the  property 
is  wrongfully  detained  by  the  defendant;  the  alleged 
cause  of  detention  thereof,  according  to  his  best 
knowledge,  information,  and  belief;  that  it  has  not 
been  taken  for  a  tax,  assessment,  or  fine,  pursuant  to 
a  statute,  or  seized  under  an  execution  or  an  attach- 
ment against  the  property  of  the  plaintiff,  or  if  so 
seized,  that  it  is  by  statute  exempt  from  such  seizure; 
the  actual  value  of  the  property.  The  affidavit  must 
have  an  indorsement  thereon,  in  waiting,  by  the  plain- 
tiff or  his  attorney,  requiring  the  officer  to  take  the 
property  from  the  defendant.  Besides  the  affidavit 
and  notice  referred  to,  there  must  be  furnished  to  the 
officer  a  written  undertaking  executed  by  two  or  more 
sufficient  sureties  to  the  effect  that  they  are  bound  to 
the  defendant  in  double  the  value  of  the  property,  as 
stated  in  the  affidavit,  for  the  return  of  the  propertv 
to  the  defendant,  if  return  thereof  be  adjudged,  and 
for  the  payment  to  him  of  such  sum  as  may,  from  any 
cause,  be  recovered  against  the  plaintiff.  {Califor- 
nia.    Code  Civ.  Proc,  sees.  510-512.) 

§  180.  Taking  the  property.  Upon  receipt  of  the 
affidavit  and  notice  and  undertaking,  the  officer  must 
indorse  upon  them  the  exact  time  of  receipt,  and  sign 
his  approval  of  the  undertaking,  and  prepare  a  copy 
of  each  for  service.  No  unnecessary  time  should  then 
be  lost  in  taking  the  property.  If  no  property  can 
be  found,  the  officer  runs  no  risk;  while,  on  the  other 
hand,  if  the  property  be  taken,  it  need  not  be  deliv- 
ered to  the  plaintiff  until  the  sureties  on  the  under- 
taking shall  have  justified.    "The  sheriff  must  forth- 


§  i8l  SHERIFFS  AND  CONSTABLES.  94 

with  take  the  property  described  in  the  affidavit,  if 
it  be  in  the  possession  of  the  defendant  or  his  agent, 
and  retain  it  in  his  custody."  {California.  Code 
Civ.  Proc,  sec.  512.) 

If  the  property  is  in  the  possession  of  any  person 
other  than  the  defendant  or  his  agent,  the  officer  will 
not  be  justified  in  taking  it. 
/  "He  must,  without  delay,  serve  upon  the  defend- 

ant a  copy  of  the  affidavit,  notice  and  undertaking, 
by  delivering  the  same  to  him,  personally,  if  he  can 
be  found,  or  to  his  agent  from  whose  possession  the 
property  is  taken,  or  if  neither  can  be  found,  by  leav- 
ing them  at  the  usual  place  of  abode  of  either,  with 
some  person  of  suitable  age  and  discretion,  or  if 
neither  have  any  known  place  of  abode,  by  putting 
them  in  the  nearest  post-office,  directed  to  the  defend- 
ant."     {California.     Code  Civ.  Proc,  sec.  512.) 

§  181.  Justification  and  retaking  property.  Un- 
der the  California  practice,  after  the  sheriff  has 
taken  property,  "the  defendant  may,  within  two  days 
after  the  service  of  a  copy  of  the  affidavit  and  under- 
taking, give  notice  to  the  sheriff  that  he  excepts  to 
the  sufficiency  of  the  sureties.  If  he  fails  to  do  so, 
he  is  deemed  to  have  waived  all  objection  to  them. 
When  the  defendant  excepts,  the  sureties  must  justify 
on  notice  in  like  manner  as  upon  bail  on  arrest,  and 
the  sheriff  is  responsible  for  the  sufficiency  of  the 
sureties  until  the  objection  to  them  is  either  w^aived 
or  until  they  justify."  If  the  defendant  does  not 
except  to  the  sureties  he  may  retake  the  property  as 
follow^s : — 

"At  any  time  before  the  delivery  of  the  property 
to  the  plaintiff,  the  defendant  may,  if  he  do  not  ex- 


95  CLAIM   AND  DELIVERY.  §§  182,  1 83 

cept  to  the  sureties  of  the  plaintiff,  require  the  re- 
turn thereof,  upon  giving  to  the  sheriff"  a  written 
undertaking,  executed  by  two  or  more  sufficient  sure- 
ties, to  the  effect  that  they  are  bound  in  double  the 
value  of  the  property,  as  stated  in  the  affidavit  of  the 
plaintiff,  for  the  delivery  thereof  to  the  plaintiff,  if 
such  delivery  be  adjudged,  and  for  the  payment  to 
him  of  such  sum  as  may  for  any  cause  be  recovered 
against  the  defendant.  If  a  return  of  the  property 
be  not  so  required  within  five  days  after  the  taking 
and  service  of  notice  to  the  defendant,  it  must  be 
delivered  to  the  plaintiff,"  unless  it  be  claimed  by  a 
third  person.      (California.     Code  Civ.  Froc,  sees. 

513'  514-) 

§  182.    Replevin  from  officer  holding  under  levy. 

When  personal  property  which  has  been  levied  upon 
by  the  sheriff  has  been  taken  from  him  in  replevin 
by  the  party  claiming  it,  he  should  consult  his  own 
safety  and  proceed  no  further  in  the  matter,  but  rest 
securely  on  the  bond  given  by  the  plaintiff  in  the 
replevin  suit.  He  may  give  an  undertaking  and  re- 
take the  property;  but  if  he  pursue  this  course,  he 
and  his  sureties  will  be  liable  to  the  claimant  for  its 
value.  Having  subsequently  sold  the  property  under 
the  execution,  and  paid  the  proceeds  to  the  plaintiff 
in  execution,  he  may  eventually  be  compelled  to  pav 
its  value  to  the  claimant. 

§  183.    Officer  responsible   until   sureties   justify. 

If  the  defendant  elect  to  retake  the  property,  the 
officer  is  still  to  retain  it  until  the  defendant's  sure- 
ties justify;  unless,  indeed,  he  is  willing  himself  to 
take  the  risk  of  such  justification.     The  effect  of  a 


§§  184-186       SHERIFFS  AND   CONSTABLES.  96 

demand  of  the  property  by  the  defendant  is  not  to 
entitle  the  defendant  to  have  the  property  delivered 
to  him,  but  to  prevent  a  delivery  of  the  property  to 
the  plaintiff.  If  the  defendant  would  have  the  prop- 
erty himself,  he  must  proceed  to  have  his  sureties 
justify.  The  property  must  be  retained  by  the  officer 
until  such  justification  takes  place,  unless  the  officer 
chooses  to  make  himself  personally  responsible  that 
the  sureties  shall  justify.  (California.  Code  Civ. 
Proc,  sec.  515.) 

§  184.  Notice  of  justification.  "The  defendant's 
sureties,  upon  notice  to  the  plaintiff  of  not  less  than 
two  and  not  more  than  five  days,  must  justify  before 
a  judge  or  county  clerk,  in  the  same  manner  as  upon 
bail  on  arrest;  and  upon  such  justification  the  sheriff 
must  deliver  the  property  to  the  defendant.  The 
sheriff  is  responsible  for  the  defendant's  sureties  until 
they  justify,  or  until  the  justification  is  completed  or 
waived,  and  may  retain  the  property  until  that  time; 
if  they,  or  others  in  their  place,  fail  to  justify  at  the 
time  and  place  appointed,  he  must  deliver  the  prop- 
erty to  the  plaintiff."  (California.  Code  Civ.  Proc, 
sec.  515.) 

§  185.  Care  of  propertv  in  replevin.  When  the 
property  is  taken  by  the  officer  he  must  exercise  the 
same  care  in  keeping  it  as  in  holding  property  under 
attachment,  and  deliver  it  to  the  party  entitled 
thereto,  upon  receiving  his  fees  for  taking  and  his 
necessary  expenses  for  keeping  the  same. 

§  186.    How  property  taken  when  concealed.    "Tf 

the  property,  or  any  part  thereof,  be  concealed  in 


97  CLAIM   AND   DELIVERY.  §§  1 87- 1 89 

a  building  or  inclosure,  the  sherifif  must  publicly  de- 
mand its  delivery;  if  it  be  not  delivered,  he  must 
cause  the  building  or  inclosure  to  be  broken  open,  and 
take  the  property  into  his  possession;  and,  if  neces- 
sary, he  may  call  to  his  aid  the  power  of  his  county." 
{California.     Code  Civ.  Froc,  sec.  517.) 

§187.    Plaintiff's  possession  only  temporary.   The 

possession  obtained  by  plaintiff  in  replevin  is  only 
temporary.  It  does  not  divest  the  title,  or  discharge 
the  lien.     (Hunt  v.  Robinson,  11  Cal.  262.) 

§  188.  Property  to  be  segregated.  Replevin  only 
lies  for  the  recovery  of  specific  personal  property. 
Property  which  has  not  been  set  apart  from  the 
mass  in  which  it  is  included  is  not  specific  property, 
and  cannot  be  reached  by  an  action  of  replevin.  Just 
what  will  constitute  a  segregation  must  depend  upon 
the  circumstances  of  each  particular  case. 

A  safe  in  the  possession  of  McC.  belonging  to  W. 
F.  &  Co.,  for  whom,  as  also  for  plaintiff,  he  was 
agent,  contained  six  thousand  dollars  in  coin.  Of 
this  sum,  four  hundred  dollars  belonged  to  W.  F.  & 
Co.,  the  balance  to  plaintiff.  Defendant,  as  sheriff, 
under  a  writ  against  McC,  seized  eighteen  hundred 
dollars  of  the  money  in  the  safe  as  his  property,  and 
put  it  in  a  bag.  Plaintiff  then  claimed  the  money 
as  his,  McC.  being  present  and  not  objecting:  Held, 
that  this  amounted  to  a  segregation  of  the  eighteen 
hundred  dollars  from  the  mass  of  coin  in  the  safe, 
so  as  to  sustain  replevin  by  plaintiff.  {Griffith  v. 
Bogardus,  14  Cal.  410.) 

§  189.    Claim  of  property  by  third  person.      Tf 

the  property  taken  be  claimed  by  any  other  person 


§  I90  SHERIFFS  AND  CONSTABLES.  98 

than  the  defendant  or  his  agent,  and  such  person 
make  affidavit  of  his  title  thereto,  or  right  to  the 
possession  thereof,  stating  the  grounds  of  such  title 
or  right,  and  serve  the  same  upon  the  sheriff,  the 
sheriff  is  not  bound  to  keep  the  property  or  deliver 
it  to  the  plaintiff,  unless  the  plaintiff,  on  demand  of 
him  or  his  agent,  indemnify  the  sheriff  against  such 
claim,  by  an  undertaking,  by  two  sufficient  sureties; 
and  no  claim  to  such  property  by  any  other  person 
than  the  defendant,  or  his  agent,  is  valid  against  the 
sheriff  unless  so  made."  {California.  Code  Civ. 
Proc,  sec.  519.) 

The  action  of  replevin  cannot  be  maintained,  under 
our  laws,  against  a  sheriff  to  recover  the  possession 
of  personal  property  held  by  him  under  a  writ  of 
replevin,  unless  a  claim  upon  him  for  such  property 
has  been  first  made  as  above  provided.  But  when 
a  third  party  claims  the  property,  the  officer  should 
demand  indemnity  at  once  from  the  plaintiff,  for  he 
can  no  more  take  the  property  of  a  stranger  under 
replevin  than  he  can  under  attachment  or  execution, 
without  rendering  himself  liable. 

§  190.  Sheriff  is  liable  for  taking  property  of 
stranger.  Where  an  order  of  court  directed  the 
sheriff  to  seize  certain  specific  property,  and  this 
property  was  proved  not  to  belong  to  the  defendant 
in  the  suit,  the  sheriff  was  held  liable  to  the  owner. 
(Rhodes  v.  Patterson,  3  Cal.  469.)  And  further, 
that  the  owner  of  property  has  his  remedy  and  the 
right  of  recovery,  against  any  one,  whether  sheriff 
or  not,  unless  it  be  held  by  legal  process  against 
himself. 


99  CLAIM   AND   DELIVERY.  §§  191,  1 92 

In  the  case  of  Bacon  v.  Robson,  53  Cal.  399,  the 
court  held  that  in  an  action  to  recover  personal  prop- 
erty or  its  value,  where  it  appears  that  the  property 
came  lawfully  into  the  possession  of  the  defendant, 
a  demand  and  refusal  to  deliver  must  be  shown. 
{See,  also,  sec.  189  ante.) 

§  191.    Bond  of  indemnity  to  sheriff.       If    in    a 

bond  to  indemnify  a  sheriff  for  replevying  property 
claimed  by  a  person  other  than  the  defendant  in  the 
writ,  the  obligors  undertake  to  indemnify  him  from 
any  damage  he  may  sustain  by  reason  of  any  costs, 
suits,  judgments,  and  executions  that  shall  come  or 
be  brought  against  him,  the  sheriff  cannot  maintain 
an  action  on  the  bond  because  a  judgment  has  been 
recovered  against  him,  but  must  first  pay  the  judg- 
ment.    (Lott  V.  Mitchell,  32  Cal.  23.) 

§  192.    Correction  of  the  valuation  of  property. 

•'When,  in  an  action  to  recover  the  possession  of  per- 
sonal property,  the  person  making  any  affidavit  did 
not  truly  state  the  value  of  the  property,  and  the 
officer  taking  the  property,  or  the  sureties  on  any 
bond  or  undertaking,  is  sued  for  taking  the  same, 
the  officer  or  sureties  may  in  their  answer  set  up  the 
true  value  of  the  property,  and  that  the  person  in 
whose  behalf  said  affidavit  was  made  was  entitled  to 
the  possession  of  the  same  when  said  affidavit  was 
made,  or  that  the  value  in  the  affidavit  stated  was  in- 
serted by  mistake,  the  court  shall  disregard  the  value 
as  stated  in  the  affidavit,  and  give  judgment  according 
to  the  right  of  possession  of  said  property  at  the  time 
the  affidavit  was  made."  {California.  Code  Civ. 
Proc,  sec.  473.) 


§§  ^93-^97       SHERIFFS  AND   CONSTABLES.  lOO 

§  193.  Form  of  judgment.  By  section  667  of  the 
Code  of  Civil  Procedure  of  California,  it  is  pro- 
vided that,  "if  the  property  has  been  delivered  to  the 
plaintifif,  and  the  defendant  claims  a  return  thereof, 
judgment  for  the  defendant  may  be  for  a  return  of 
the  property  or  the  value  thereof,  in  case  a  return 
cannot  be  had,  and  damages  for  taking  and  with- 
holding the  same";  and  similar  provisions  exist  in 
other  states. 

§  194.    Judgment  to  be  in  the  alternative.     The 

judgment  in  replevin  must  be  in  the  alternative  form, 
— i.  e.  either  for  possession  of  the  property  or  for 
damages,  etc., — even  though  the  property  has  been 
delivered  to  the  plaintiff.  (Brichman  v.  Ross,  67 
Cal.  601,  8  Pac.  316.    See,  also,  sec.  195,  post.) 

§  195.   When  judgment  for  damages  alone  proper. 

When  it  appears  on  the  trial  in  replevin  that  the 
property  has  been  destroyed  and  cannot  therefore  be 
returned,  a  judgment  for  damages  alone  will  not  be 
reversed.     (Broun  v.  Johnson,  45  Cal.  76.) 

§  196.  Particular  description  of  property.  In  re- 
plevin, where  the  judgment  for  the  plaintifif  de- 
scribes the  property  to  be  restored  as  "buckwheat, 
valued  at  three  hundred  and  sixty-five  dollars  and 
seventy-five  cents,"  the  description  is  insufficient  to 
sustain  the  judgment,  unless  the  judgment  refer  for 
a  fuller  description  to  the  complaint,  and  there  is  a 
more  definite  description  in  the  complaint.  {Welch 
V.  Smith,  45  Cal.  230.) 

§  197.  Partial  delivery  of  property.  When  judg- 
ment in  replevin  was  rendered  for  the  possession  of 


lOI  CLAIM   AXD   DELIVERY.  §  1 98 

four  hundred  hogs  or  two  thousand  dollars,  the  value 
thereof,  the  sheriff  failing  to  find  more  than  ninet>'- 
six  hogs,  properly  levied  on  other  property  to  make 
up  the  remainder  of  the  judgment.  {Black  v.  Black, 
74  Cal.  520,  16  Pac.  311.) 

§  198.    Property  lost  through  act  of  God.     It  is 

no  defense  to  an  action  upon  a  replevin  bond  that 
the  property  was  lost  through  the  act  of  God. 

In  the  case  of  De  Thomas  v.  Witherby,  61  Cal. 
92,  44  Am.  Rep.  542,  the  plaintifif  pleaded  that  two 
cows  known  as  graded  stock  died,  thereby  rendering 
it  impossible  for  plaintifif  to  return  said  cattle  to 
defendants.  It  was  held  that  this  was  no  defense. 
The  court  said: — 

"In  some  of  the  cases  to  which  we  have  been  re- 
ferred, it  has  been  held  that  the  plaintiff,  who  ob- 
tains the  possession  of  personal  property  by  replevin, 
is  excused  from  returning  the  same  in  case  it  has  died 
since  the  seizure,  without  any  neglect  or  default  on 
the  part  of  the  party  taking  it.  This  was  the  doc- 
trine laid  down  by  the  supreme  court  of  New  York, 
in  Carpenter  v.  Stevens,  12  Wend.  589.  ...  To  the 
same  eft'ect  is  the  case  of  Melvin  v.  Winslow,  10  Me. 
397.  But  an  examination  of  more  recent  cases  and 
later  authorities  convinces  us  that  the  above  cases  do 
not  lay  do\vn  the  correct  rule  on  this  subject.  .  .  . 
The  weight  of  authority  is  manifestly  against  excus- 
ing the  party  who  has  replevined  goods,  from  re- 
turning the  same  or  responding  in  damages  for  their 
value,  because  they  have  been  lost  by  the  act  of  God, 
and  it  appears  to  us  that  upon  no  sound  principle  can 
he  be  excused.  A  plaintiff  not  being  the  owner  of 
goods  who  takes  them  out  of  the  possession  of  the 


§  199  SHERIFFS  AND  CONSTABLES.  102 

real  owner,  holds  them  in  his  own  wrong,  and  at 
his  own  risk.  He  has  deprived  the  real  owner  of 
the  possession,  and  has  also  deprived  him  of  the 
means  of  disposing  of  the  property  pending  the  liti- 
gation; and  when  at  the  end  of  perhaps  a  protracted 
litigation  it  is  determined  that  the  plaintiff  in  the 
replevin  suit  had  no  right  to  the  possession  of  the 
goods,  and  judgment  is  rendered  against  him  for  the 
return  of  the  property  or  its  value,  he  cannot,  on 
principle  or  authority,  be  excused  from  satisfying 
such  judgment  under  a  plea  that  the  property  has 
been  lost  in  his  hands,  even  by  the  act  of  God." 

§  199.  Attachment  lien  in  replevin.  The  ques- 
tion as  to  whether  the  lien  of  attachment  continues 
after  the  replevy  of  goods  is  decided  affirmatively 
by  the  supreme  court  in  the  case  of  Hunt  v.  Robinson, 
II  Cal.  262.  This  was  an  action  against  the  sureties 
on  a  replevin  bond,  and  the  facts  were  as  follows: — 

Treadwell  commenced  suit  against  David  Jones, 
by  attachment,  which  was  levied  upon  certain  per- 
sonal property  by  the  plaintiff  Hunt,  as  sheriff  of 
Sacramento  County.  Mary  Jones,  wife  of  David 
Jones,  claimed  the  property  as  a  sole  trader,  and 
commenced  her  action  of  replevin,  and  obtained  pos- 
session of  the  property,  upon  delivering  the  statu- 
tory undertaking  executed  by  defendants,  Robinson 
and  Skinker.  The  replevin  suit  was  decided  on  the 
5th  of  February,  1855,  in  favor  of  Hunt,  and  a  mo- 
tion made  for  a  new  trial  by  Mrs.  Jones,  which 
motion  was  pending  until  March  9,  1855,  when 
it  was  overruled.  Treadwell  obtained  judgment 
against  David  Jones,  November  30,  1854,  for  four 
thousand   three   hundred   dollars.     On   the    i8th  of 


r03  CLAIM   AND   DELIVERY.  §  200 

February,  1855,  certain  executions  in  favor  of  other 
creditors  of  David  Jones  being  in  the  hands  of  the 
plaintiff  Hunt,  were  levied  by  him  upon  the  same 
property,  and  the  property  sold  about  the  last  of 
February.  The  sheriff,  being  in  doubt  as  to  which 
of  the  several  creditors  was  entitled  to  the  proceeds 
of  the  sale,  paid  the  money  into  the  sixth  district 
court,  and  filed  his  bill  of  interpleader,  making 
Treadwell  and  the  other  creditors  parties.  Upon 
the  hearing  the  district  court  decided  that  the  second 
class  of  creditors  were  entitled  to  the  proceeds. 
From  this  decision  no  appeal  was  taken  by  any 
party.  On  March  17,  1855,  Hunt  issued  his  execu- 
tion upon  the  judgment  obtained  by  him  in  the  re- 
plevin suit,  which  was  returned  by  the  coroner 
unsatisfied.  The  sheriff  then  brought  his  suit  against 
the  sureties  in  the  replevin  bond,  and  obtained  judg- 
ment against  them  for  the  assessed  value  of  the  prop- 
erty replevied  and  for  costs,  and  the  defendants 
appealed. 

The  supreme  court  decided  that  the  lien  of  Tread- 
well's  attachment  continued  after  the  replevy  of  the 
goods  by  Mary  Jones,  and  that  when  the  same  prop- 
erty came  into  the  hands  of  Hunt,  as  sheriff,  the 
condition  of  the  replevin  bond,  to  return  the  property, 
was  fulfilled.  The  property  was  then  liable  to  a 
second  levy,  but  such  second  levy  was  subject  to 
the  levy  under  the  prior  attachment. 

§  200.    Attempted    replevin    from    sheriff.      The 

duties  of  the  sheriff  in  case  of  a  cross-suit  in  replevin 
are  discussed  and  clearly  laid  down  in  the  case  of 
Fleming  v.  Wells,  65  Cal.  336,  4  Pac.  197.  In  that 
case  it  was  held  by  the  court,  on  appeal  from  a  judg- 


§  200  SHERIFFS  AND  CONSTABLES.  104 

ment  on  the  pleadings,  that  the  sheriff  cannot  be  held 
responsible  in  replevin  for  property  of  the  plaintiff, 
taken  by  him  on  a  prior  replevin  suit  and  regularly 
delivered  to  the  plaintiff  in  that  suit,  but  that  the 
plaintiff  as  defendant  in  the  first  suit,  should  have 
given  the  statutory  bond  for  redelivery  instead  of  in- 
stituting an  independent  cross-action  in  replevin. 


CHAPTER  VIII. 

IXJ  UNCTION. 

§  20oa.  How  served. 

§  20ob.  By  whom  served. 

§  200C.  When  may  be  served. 

§  200d.  Sheriff  must  obey  writ. 

§  20oa.  How  served.  In  the  absence  of  any  stat- 
utory provision  as  to  the  manner  of  service  of  the 
writ  of  injunction,  it  is  sufficient  if  service  be  made 
in  the  manner  prescribed  for  service  of  summons. 
(Golden  Gate  M.  Co.  v.  Superior  Court,  65  Cal. 
187,  3  Pac.  628.)  In  California,  when  the  injunction 
is  granted  upon  the  complaint,  a  copy  of  the  com- 
plaint and  verification  attached  must  be  served  with 
the  injunction;  when  granted  upon  affidavit,  a  copy 
of  the  affidavit  must  be  served  with  the  injunction. 
[Code  Civ.  Proc,  sec.  527.) 

§  200b.  By  whom  served.  Although  statutory 
provision  is  usually  made  that  "the  sheriff  must  serve 
all  process,"  etc.,  such  a  provision  does  not  impose 
upon  him  exclusively  such  duty;  and  in  the  absence 
of  any  express  statute  designating  the  persons  by 
whom  an  injunction  is  to  be  served,  it  may  be  served 
by  anv  person  authorized  by  law  to  make  service  of 
summons.  {Golden  Gate  M.  Co.  v.  Superior  Court, 
65  Cal.  187,  3  Pac.  628.) 

§  200c.  When  may  be  served.  Injunctions  and 
writs  of  prohibition  may  be  issued  and  served  on 


§  200d  SHERIFFS   AND   CONSTABLES.  Io6 

legal  holidays  and  non-judicial  days.      (California. 
Code  Civ.  Proc,  sec.  76.) 

§  20od.  Sheriff  must  obey  writ.  Where  a  sher- 
iff levies  on  and  is  about  to  sell  property  of  an  execu- 
tion debtor,  and  the  defendant  in  execution  obtains 
from  the  court  in  which  the  judgment  was  rendered 
an  injunction  restraining  the  plaintiff  in  the  judg- 
ment, his  servants,  etc.,  from  proceeding  to  sell  under 
such  execution,  and  this  injunction  is  served  upon  the 
sheriff,  who  in  defiance  of  it  afterwards  makes  the 
sale,  he  is  a  naked  trespasser,  and  liable  in  damages 
— even  though  he  be  not  a  party  to  the  injunction 
suit.  It  was  so  held  in  the  case  of  Buffandeau  v. 
Edmondson,  17  Cal.  437,  79  Am.  Dec.  139,  and  that 
it  was  "unnecessary  to  consider  whether  the  bill  of 
complaint  showed  a  proper  case  for  an  injunction, 
or  whether  the  injunction  was  regularly  granted  or 
not.  It  was  enough  for  the  sheriff  to  know  that  a 
court  of  competent  jurisdiction  had  made  the  order, 
and  then  it  became  his  duty  to  obey  it." 


CHAPTER  IX. 

ATTACHMENT — GENERALLY. 

§  201.  Nature  and  object  of  writ. 

§  202.  Issuance  before  summons  void. 

§  203.  Regularity  of  writ. 

§  204.  What  the  writ  must  state. 

§  205.  Justice's  court  attachment. 

§  206.  Original  writ  to  be  kept  in  sheriff's  office. 

§  207.  Instructions  to  sheriff. 

§  208.  Attachment  void  for  want  of  proper  undertaking. 

§  209.  Irregularity  in  issuance  of  attachment. 

§  210.  Attachment  where  the  debt  is  not  due. 

§  211.  Contract  made  out  of  state. 

§  212.  Right  to  intervene. 

§  213.  Receipt  and  levy  on  holiday. 

§  214.  Attachment — Levy  before  service  of  summons. 

§  215.  No  notice  to  defendant  necessary. 

§  216.  What  may  be  levied  upon. 

§  217.  When  property  not  attachable. 

§  218.  Property  in  custody  of  the  law. 

§  219.  Attachment  lien — How  enforced. 

§  220.  Attachment  not  affected  by  new  summons. 

§  221.  Conflicting  attachments. 

§  222.  Priority  of  levy — Sheriff  and  deputy. 

§  223.  Inventory  and  return  of  the  writ. 

§  224.  What  the  return  should  contain. 

§  225.  Return — When  not  amendable. 

§  226.  Return  on  second  writ. 

§  227.  Preferred  labor  claims. 

§  228.  Service  of  notice. 

§  201.    Nature  and  object  of  writ.      An     attach- 
ment is  a  process  under  which  the  debtor's  property 

may  be  seized  and  held  as  security  for  the  satisfac- 


§  202  SHERIFFS   AND   CONSTABLES.  Io8 

tion  of  any  judgment  that  may  be  recovered  against 
him  in  the  action,  unless  he  gives  security  for  the 
payment  of  the  judgment,  in  the  manner  provided 
by  the  statute.  The  object  of  the  writ  of  attachment 
is  to  secure,  in  the  interest  of  the  plaintiff,  sufficient 
property  belonging  to  the  defendant  to  satisfy  the 
plaintiff's  claim.  The  purpose  of  the  lien  is  to  secure 
the  payment  of  the  judgment,  and  this  is  accom- 
plished bv  its  holding  the  property  until  the  judgment 
is  rendered — and  in  case  of  real  property,  until  the 
judgment  is  or  may  be  docketed — so  that  the  attached 
property  may  be  taken  and  sold  under  an  execu- 
tion to  be  issued  on  the  judgment.  It  enables  the 
sheriff  to  seize  the  property  of  the  debtor  and  to 
hold  it  until  the  court  can  determine  the  respective 
rights  of  the  parties  by  a  judgment.  This  being  the 
object  of  the  writ,  it  is  clearly  the  duty  of  the  officer 
to  use  all  due  diligence  in  the  service  thereof.  Any 
delay  on  his  part  may  defeat  this  object,  and  render 
him  liable  to  the  plaintiff  for  whatever  loss  may  be 
thereby  sustained. 

§  202.  Issuance  before  summons  void.  When  the 
statute  provides  that  the  plaintiff  "at  the  time  of  issu- 
ing the  summons,  or  any  time  afterward,  may  have 
the  property  of  the  defendant  attached,"  these  pro- 
visions must  be  strictly  followed,  and  the  attachment, 
if  issued  before  the  summons,  is  a  nullity.  The  issu- 
ance of  the  summons  afterwards  cannot  cure  that 
which  was  void  from  the  beginning.  {Low  v.  Henry, 
9  Cal.  538.) 

It  is  not  presumed  that  a  county  clerk  or  a  justice 
of  the  peace  will  issue  a  writ  of  attachment  before 
the  summons.     Such  a  procedure  could  only  arise 


I09  ATTACHMENT — GENERALLY.       §§  203,  204 

through  the  grossest  negligence,  and  would  not  be 
excusable  upon  any  plea  of  confusion  caused  by- 
haste  or  multiplicity  of  duties  requiring  immediate 
attention  at  the  time  of  error.  But  if  a  sheriff  re- 
ceive information  that  no  summons  has  been  issued 
at  the  time  the  writ  is  placed  in  his  hands,  he  will 
serve  the  writ  at  his  peril. 

§  203.  Regularity  of  writ.  It  is  an  old  principle 
of  law  that,  on  the  reception  of  a  ministerial  writ, 
it  is  the  duty  of  the  officer  to  obey  its  mandate,  if  it 
be  regular  on  its  face  and  issued  by  competent  au- 
thority; if  there  be  any  irregularity  in  its  issuance, 
w^hich  does  not  so  appear,  such  irregularity  afifects 
the  parties,  but  not  the  ministerial  officer.  It  is 
incumbent  upon  the  officer,  therefore,  before  making 
service  of  process,  to  examine  the  same,  and  satisfy 
himself  upon  these  points.  (See,  also,  sees.  59,  ante, 
344,  345,  547,  P^st.) 

§  204.  What  the  writ  must  state.  Under  the 
California  code  provision  {Code  Civ.  Proc,  sec. 
540)  "the  wTit  must  be  directed  to  the  sheriff  of  any 
county  in  which  property  of  such  defendant  may  be, 
and  must  require  him  to  attach  and  safely  keep  all 
the  property  of  such  defendant  within  his  county  not 
exempt  from  execution,  or  so  much  thereof  as  may 
be  sufficient  to  satisfy  the  plaintiff's  demand,  the 
amount  of  which  must  be  stated  in  conformity  with 
the  complaint,  unless  the  defendant  give  him  secu- 
rity by  the  undertaking  of  at  least  two  sufficient  sure- 
ties, in  an  amount  sufficient  to  satisfy  such  demand, 
besides  costs,  or  in  an  amount  equal  to  the  value  of 
the  property  which  has  been  or  is  about  to  be  at- 
tached, in  which  case,  to  take  such  undertaking." 


§§205-207       SHERIFFS  AND  CONSTABLES.  I  lO 

§  205.  Justice's  court  attachment.  Where  a  writ 
of  attachment  issued  by  a  justice  of  the  peace  is  to 
be  served  out  of  the  county  in  which  it  was  issued, 
the  writ  of  attachment  shall  have  attached  to  it  a 
certificate  under  seal,  by  the  county  clerk  of  such 
county,  to  the  effect  that  the  person  issuing  the  same 
was  an  acting  justice  of  the  peace  of  said  county  at 
the  date  of  the  writ.  (California.  Code  Civ.'Proc, 
sec.  1905.) 

§  206.    Original  writ  to  be  kept  in  sheriff's  office. 

The  officer  should  make  the  levy  with  a  copy  of  the 
writ,  leaving  the  original  writ,  in  all  cases,  at  his 
office.  He  need  not  give  an  attaching  creditor  notice 
of  the  levy  of  his  attachment,  nor  need  he  serve  a 
copy  of  the  writ  upon  the  defendant.  The  latter  is 
entitled  to  a  copy,  if  he  demand  it,  upon  payment 
of  the  lawful  fee  therefor;  but  if  the  officer  have  no 
copy  with  him  at  the  time,  it  may  be  delivered  to 
him  thereafter. 

§  207.  Instructions  to  sheriff.  The  writ  should 
be  accompanied  with  written  instructions  directing 
the  officer  as  to  the  property  to  be  attached;  and 
when  the  property  is  real  property,  the  directions 
should  state  in  whose  name  the  property  stands  of 
record.  The  best  form  of  instruction  to  the  sheriff 
should  contain  such  a  description  as  would  give  satis- 
faction if  contained  in  a  deed;  for,  if  the  cause  is 
prosecuted  to  judgment  and  sale,  and  a  deed  pass  to 
the  purchaser,  the  description  of  the  land  given  in 
the  first  proceeding  will  follow  to  the  deed.  Al- 
though the  officer  is  bound  to  attach  property  be- 
longing to  the  defendant  without  written  instructions 


I  I  I  ATTACHMENT— GENERALLY.  §  2o8 

to  do  so,  if  he  know  of  any  that  is  not  exempt  within 
the  county,  yet,  if  such  directions  are  not  given,  he 
may  afterwards  seek  to  excuse  himself  from  neglect 
by  pleading  ignorance  or  uncertainty  of  ownership. 
Where  specific  instructions  are  given  in  writing,  the 
party  desiring  the  levy  and  the  officer  at  once  arrive 
at  a  mutual  understanding  as  to  the  work  to  be  done. 
In  California  "no  directions  or  authority  by  a 
party  or  his  attorney,  to  a  sherifif,  in  respect  to  the 
execution  of  process  or  return  thereof,  or  to  any  act 
or  omission  thereto,  is  available  to  discharge  or  ex- 
cuse the  sherifif  from  a  liability  for  neglect  or  mis- 
conduct, unless  it  is  contained  in  a  writing  signed  by 
the  attorney  of  the  party,  or  by  the  party,  if  he  has 
no  attorney."     {California.    Pol.  Code,  sec.  ^iS^.) 

§  208.  Attachment  void  for  want  of  proper  un- 
dertaking. Where  the  undertaking  given  on  issuing 
an  attachment  from  a  justice's  court  was  to  the  efifect 
that  plaintiff  would  pay  all  costs,  etc.,  and  the  dam- 
ages the  defendant  might  sustain  by  reason  of  the 
attachment,  "not  exceeding  one  hundred  dollars": 
Held,  that  the  undertaking  was  bad,  and  rendered 
the  attachment  void  because  not  issued  in  substantial 
conformity  with  the  provision  of  the  553d  section 
of  the  Practice  Act.  (Hisler  v.  Carr,  34  Cal.  641.) 
In  the  same  case  it  was  held  that  where  the  affidavit 
failed  to  show  that  the  plaintiff  had  a  cause  of  action 
against  defendant,  the  summons  which  was  made 
returnable  more  than  ten  days  from  its  date  was 
void,  as  was  also  an  attachment  issued  in  the  same 
case. 


§§209-211       SHERIFFS  AND  CONSTABLES.  112 

§  209.    Irregularity    in    issuance    of    attachment. 

Where  an  attachment  was  issued  on  a  complaint, 
which  was  a  printed  form,  with  the  blanks  filled  up 
by  the  clerk,  at  the  request  of  plaintiff,  but  no  name 
signed  to  it  till  next  day,  and  after  other  attachments 
on  the  same  property,  when  it  was  signed  by  the 
clerk,  with  the  name  of  the  plaintiff's  attorney:  Held, 
that  the  action  of  the  clerk,  though  not  correct,  was 
only  an  irregularity,  and  the  complaint  wa$  not  void. 
(Dixey  V.  Pollock,  8  Cal.  570.) 

If  an  attachment  be  issued  and  levied  in  an  action 
for  a  debt  which  has  been  secured  by  a  mortgage, 
the  case  not  being  one  in  which  the  statute  allows 
such  writ,  the  attachment  should  be  dissolved  on 
proper  motion.      {Kinsey  v.  JVallace,  36  Cal.  462.) 

§  210.    Attachment  where   the   debt  is  not  due. 

An  attachment  issued  upon  a  debt  not  due  is  void  as 
against  creditors  whose  rights  are  injuriously  affected 
by  it.  But  where  goods  were  fraudulently  purchased 
by  an  insolvent,  the  creditor  may  attach  before  the 
maturity  of  the  debt,  and  other  creditors,  subse- 
quently attaching,  cannot  complain  that  the  suit  was 
prematurely  brought.  The  debt  in  such  case  is  equi- 
tably due,  and  there  being  no  actual  fraud  against 
subsequent  creditors,  they  cannot  be  preferred  in 
equity,  even  if  the  suit  could  have  been  defeated  by 
the  debtor  himself.  (Patrick  v.  Montader,  13  Cal. 
435;  Davis  V.  Eppinger,  18  Cal.  379,  79  Am.  Dec. 

184.) 

§  21 1.  Contract  made  out  of  state.  If  a  contract 
is  not  made  in  the  state,  there  must  be  an  express 
stipulation  that  it  shall  be  paid  in  the  state,  in  order 


I  1 3  ATTACHMENT — GENERALLY.       §§212-215 

to   authorize   the   issuance  of   an   attachment  in   an 
action  upon  it. 

§  212.  Right  to  intervene.  Where  a  subsequent 
attaching  creditor  has  his  attachment  levied  on  the 
property  previously  levied  on  by  a  prior  attaching 
creditor,  he  is  entitled  to  intervene  in  the  action  be- 
tween the  first  attaching  creditor  and  the  defendant, 
if  the  first  attachment  was  fraudulently  procured, 
and  the  common  debtor  has  not  sufficient  property 
to  pay  both  claims.     {Coghill  v.  Marks,  29  Cal.  673.) 

§  213.  Receipt  and  levy  on  holiday.  In  the  ab- 
sence of  a  statutory  authority,  a  writ  of  attachment 
placed  in  the  hands  of  the  sheriff  on  a  holiday  can- 
not be  officially  received  by  him  on  that  day.  It  can 
only  be  considered  officially  in  his  hands  when  the 
holiday  has  expired.  (JVIiitney  v.  Butterfield,  13 
Cal.  335,  73  Am.  Dec.  584.) 

In  some  states  provision  is  made  by  statute  for  the 
issuance  and  levy  of  the  writ  of  attachment  on  holi- 
days, in  certain  specified  cases. 

§214.  Attachment — Levy  before  service  of  sum- 
mons. Although  the  writ  of  attachment  may  not  be 
issued  before  the  summons,  it  may  be  served  before 
the  summons  is  served.  The  service  of  the  summons 
cuts  no  figure  in  the  attachment.  The  attachment 
cannot,  but  the  summons  may,  be  served  by  a  private 
person. 

§215.    No  notice  to  defendant  necessary.     The 

sheriff  to  whom  the  writ  is  directed  and  delivered 
must  execute  the  same  without  delay  if  the  statutory 


§§2l6,  217       SHERIFFS  AND  CONSTABLES.  114 

undertaking  be  not  given.  The  officer  is  not  bound 
to  look  up  the  defendant  to  ascertain  if  he  wishes  to 
give  the  undertaking,  nor  would  it  be  proper  for  him 
to  delay  executing  the  writ  for  that  purpose. 

§  216.  What  may  be  levied  upon.  The  statu- 
tory provisions  in  regard  to  attachment  are  broad 
enough  to  allow  the  levy  of  the  writ,  and  provide  a 
method  of  levying  the  writ,  upon  any  property  of 
the  defendant,  either  real  or  personal,  or  any  interest 
therein  not  exempt  from  execution,  or  so  much 
thereof  as  may  be  necessary  to  satisfy  the  demand 
sued  on.  Were  this  not  the  case,  the  writ  would  fall 
short  of  its  plain  object  and  purpose. 

No  property  may  be  taken  in  attachment,  how- 
ever, that  is  not  liable  to  seizure  under  the  execution 
when  issued,  and  the  only  way  in  which  the  levying 
of  the  attachment  upon  the  property  operates  as 
security  for  the  satisfaction  of  the  anticipated  judg- 
ment is  by  its  capacity  to  hold  the  property  to  await 
the  execution  to  be  issued.  This  is  necessarily  im- 
plied by  the  various  statutory  provisions  for  the  sale 
of  the  attached  property  in  case  of  judgment  subse- 
quently recovered.  (California.  Code  Civ.  Proc, 
sec.  550.) 

§  217.  When  property  not  attachable.  An  at- 
taching creditor  can  acquire  no  greater  right  in  the 
attached  property  than  the  defendant  had  at  the  time 
of  the  levy.  If  it  be  so  situated  that  he  cannot  dis- 
pose of  it  adversely  to  others,  it  cannot  be  attached 
for  his  debt.  (Ward  v.  Waterman,  85  Cal.  488,  24 
Pac.  930;  Lowenberg  v.  Greenebaum,  99  Cal.  165, 
2,7  Am.  St.  Rep.  42,  33  Pac.  794,  21  L.  R.  A.  399.) 


115  ATTACHMENT — GENERALLY.       §§2 1 8-220 

§  2i8.    Property  in  custody  of  the  law.      In   the 

absence  of  a  statute  to  the  contrary,  money  in  the 
hands  of  the  sheriff,  collected  on  execution,  is  in  the 
custody  of  the  law,  and  is  not  the  subject  of  attach- 
ment or  garnishment;  and  money  in  the  hands  of  a 
receiver  is  not  liable  to  seizure  without  an  order  from 
the  court  having  charge  thereof.  {Clymer  v.  Willis, 
3  Cal.  363,  58  Am.  Dec.  414;  County  of  Yuba  v. 
Adams,  7  Cal.  35.) 

§219.    Attachment    Hen  —  How    enforced.     The 

only  mode  provided  by  statute  for  enforcement  of  the 
attachment  lien  upon  property  held  under  the  writ 
is  by  sale  under  execution,  and  payment  of  the  pro- 
ceeds of  the  sale  and  of  all  moneys  derived  from  sale 
of  perishable  property  and  collected  on  garnishment. 
The  proceeds  of  attached  property  sold  under  order 
of  court  by  statutory  authority  forms  no  exception 
to  the  usual  course  of  proceedings  respecting  prop- 
erty held  under  attachment,  for  the  money  in  the 
officer's  hands,  though  not  required  to  be  levied  upon 
under  execution,  because  not  required  to  be  sold,  can 
be  applied  to  the  satisfaction  of  the  judgment  only 
when  the  plaintiff  is  entitled  to  an  execution,  and  it 
is  appropriated  in  the  same  manner  as  when  made 
under  the  execution. 

§  220.    Attachment  not  affected  by  new  summons. 

In  Seaver  v.  Fitzgerald,  23  Cal.  86,  in  a  suit  com- 
menced before  a  justice  of  the  peace,  it  was  held 
that  if  the  summons  be  returned  by  the  officer  with 
his  indorsement  thereon  that  no  service  has  been 
made,  because  defendant  cannot  be  found,  and  on 
the  return  day  thereof  it  is  further  made  to  appear 


§22  1  SHERIFFS  AXD   CONSTABLES.  Tl6 

by  affidavit  that  the  defendant  conceals  himself  to 
avoid  service  of  process,  the  suit  does  not  thereby 
abate,  but  the  magistrate  may  continue  the  case,  issue 
a  new  summons,  and  make  an  order  for  its  service 
by  publication.  In  such  case,  when  an  attachment  is 
regularly  issued  by  the  justice  at  the  time  of  the 
issuance  of  the  first  summons,  the  attachment  is  not 
vitiated  by  the  failure  to  serve  the  first  summons  and 
the  issuance  of  a  second  one,  nor  is  the  validity  of 
the  attachment  in  any  way  affected  by  the  proceed- 
ings. The  plaintiff  contended  that  the  second  sum- 
mons was  the  summons  in  the  case,  because  that  was 
the  summons  served  by  publication,  and  as  the  writ 
of  attachment  was  issued  before  this  second  summons, 
it  was  therefore  void.  The  court  held  that  this  point 
was  clearly  untenable,  that  a  summons  was  duly 
issued  before  or  at  the  time  of  the  issuing  of  the 
attachment,  and  the  attachment  was  therefore  valid 
w^hen  it  issued.  The  fact  that  the  defendant  absented 
himself  so  that  the  summons  could  not  be  served  on 
him  before  the  return  day  thereof,  and  that  it  was 
returned  not  served,  could  not  have  the  eflect  of 
vitiating  the  attachment. 

§  221.  Conflicting  attachments.  The  application 
of  an  attaching  creditor  to  compel  the  sheriff  to  pay 
over  the  proceeds  of  goods  attached,  there  being 
conflicting  claims  between  several  attaching  cred- 
itors, may  be  made  by  motion.  If  notice  of  the  mo- 
tion is  not  given  by  the  party  moving  to  the  other 
attaching  creditors,  it  is  the  duty  of  the  sheriff  to 
do  so,  if  he  wishes  the  decision  to  bind  them. 
(Dixey  v.  Pollock,  8  Cat.  570.) 


117  ATTACHMENT — GENERALLY.  §22  1 

A  sheriff  who  receives  an  attachment  regular  upon 
its  face,  cannot  pay  over  the  money  obtained  by  him 
from  the  sale  of  the  property,  levied  on  by  virtue  of 
the  writ,  to  a  junior  attaching  creditor,  because  the 
complaint  in  the  action  on  which  the  first  attach- 
ment was  issued  did  not  set  forth  a  cause  of  action 
upon  which  an  attachment  could  issue.  When  a 
sheriff  receives  money  on  execution  sale  of  property 
levied  on  by  virtue  of  attachments,  it  is  his  duty  to 
apply  the  money  in  the  order  of  the  attachments. 
The  sheriff  has  no  right  to  go  back  of  the  process 
and  raise  the  question  as  to  the  validity  of  the  attach- 
ments. (McComb  V.  Reed,  28  Cal.  281,  87  Am.  Dec. 
115.) 

If  two  attachments,  issued  from  different  courts, 
are  placed  in  the  sheriff's  hands,  and  one  is  issued  and 
levied  before  the  other,  and  the  sheriff  levies  on  the 
same  personal  property  by  virtue  of  both,  although 
the  court  from  which  the  second  attachment  issued 
may  make  an  order  for  the  sale  of  the  property,  it 
has  no  power  to  dispose  of  the  fund  arising  from  the 
sale,  other  than  the  surplus  remaining  after  the 
claim  of  the  first  attaching  creditor  is  satisfied.  In 
such  case,  if  the  sheriff  obeys,  and  the  money  is  paid 
to  the  second  attaching  creditor,  the  sheriff  is  liable 
to  the  first  attaching  creditor  for  the  amount  for 
which  he  recovers  judgment,  or  for  the  amount  of 
the  proceeds,  if  less  than  the  amount  of  the  judg- 
ment.    {Weaver  v.  Wood,  49  CaL  297.) 

Where  a  first  attachment  against  an  insolvent  is 
set  aside  as  fraudulent,  in  a  suit  brought  by  a  sub- 
sequent attaching  creditor,  to  which  various  other 
attaching  creditors,  prior  and  subsequent,  are  parties, 
the  plaintiff  in  the  suit  cannot  claim  priority  over  the 


§§222,223       SHERIFFS  AND  CONSTABLES.  Il8 

attachments  preceding  his,  on  the  ground  that  by  his 
superior  diligence  the  fraud  has  been  discovered. 
Such  a  fund  is  not  strictly  an  equitable  asset.  The 
prior  attachments  became  liens,  in  the  nature  of  a 
legal  estate  vested  in  the  sherifif  for  the  benefit  of  the 
creditors.  Plaintifif's  costs,  disbursements,  and  coun- 
sel fees,  however,  should  first  be  deducted  from  the 
fund  before  distribution.  {Patrick  v.  Montader,  13 
Cal.  435.) 

§  222.    Priority  of  the  levy — Sheriff  and  deputy. 

Where  one  writ  of  attachment  was  placed  in  the 
sheriff's  hands  on  Sunday,  and  another  against  the 
same  defendant  was  placed  in  the  hands  of  a  deputy 
at  a  quarter  past  twelve  on  Monday  morning,  the 
sheriff  not  knowing  the  fact,  and  the  first  levy  was 
made  under  the  last  writ  at  one  o'clock  Monday 
morning,  the  sheriff  was  not  guilty  of  negligence  in 
executing  the  first  writ  — no  special  circumstances 
being  shown.  (JVhitney  v.  Butterfield,  13  Cal.  336, 
y;^  Am.  Dec.  584.) 

§  223.  Inventory  and  return  of  the  writ.  In  Cal- 
ifornia the  statute  requires  the  sheriff  to  make  a  "full 
inventory"  of  the  property  attached  and  return  the 
same  with  the  writ.  ( Code  Civ.  Proc,  sees.  546,  559.) 
He  must  return  the  writ  of  attachment  with  the  sum- 
mons, if  issued  at  the  same  time,  otherwise,  within 
twenty  days  after  its  receipt. 

In  computing  the  time,  the  day  of  its  receipt  is 
excluded  and  the  last  day  included.  The  writ  of 
attachment  must  not  be  returned  until  the  last  day, 
except  by  written  instruction  from  the  plaintiff  or  his 
attorney,  or  unless  it  has  been  fully  satisfied.     After 


119  ATTACHMENT — GENERALLY.  §224 

having  made  a  levy  under  the  writ,  the  plaintiff  may 
find  other  property  which  he  desires  to  be  attached, 
and  if  the  writ  has  been  returned,  he  may  lose  the 
opportunity  to  secure  such  other  property,  and  the 
sheriff  be  held  accountable  therefor.  {California. 
Code  Civ.  Proc,  sees.  546,  559.) 

§  224.    What   the    return    should    contain.      The 

sheriff's  return  upon  process  is  a  report  of  his  pro- 
ceedings thereunder.  Where  the  language  of  the 
law,  which  requires  him  to  do  certain  things  in  the 
service  of  process,  is  mandatory,  he  should  make  the 
wording  of  his  return  conform  strictly  to  the  require- 
ments therein  expressed,  if  he  has  faithfully  followed 
those  requirements  in  making  the  service.  It  is  the 
duty  of  the  sheriff,  when  returning  an  attachment  of 
real  property,  to  indorse  thereon  w^hat  acts  he  per- 
formed in  serving  the  writ,  and  it  will  be  presumed 
that  he  states  all  that  he  did  towards  making  the  ser- 
vice. Care  should  be  taken  to  include  the  inventory 
of  attached  property,  mentioned  in  the  preceding 
section.  If  he  serve  a  garnishment  upon  A,  w^ho 
fails,  neglects,  and  refuses  to  answer,  and,  subsequent- 
ly, by  direction  of  the  plaintiff,  he  serve  another 
garnishment  upon  A,  who  answers  thereto  that  he 
has,  or  has  not,  money  or  goods  belonging  to  the 
defendant,  the  officer  must  make  return  of  both  ser- 
vices. He  must  not  take  for  granted  that  because 
no  answer  w^as  made  by  A  to  the  first  garnishment,  it 
was  a  useless  service,  and  that  therefore  no  return 
need  be  made  of  that  service,  for  it  may  be  necsssary 
for  the  plaintiff"  to  show  in  subsequent  proceedings 
that  a  copy  of  the  writ  and  notice  of  garnishment  had 
been  served  upon  A  at  the  time  the  first  service  was 
made. 


§§225-227       SHERIFFS  AND  CONSTABLES.  1 20 

§225.  Return — When  not  amendable..  A  sheriff 
has  no  right,  after  making  a  return,  to  amend  it  so  as 
to  affect  rights  which  have  already  vested.  (Neu^hall 
V.  Provost,  6  Cal.  85.)  The  return  on  attachment 
cannot  be  amended  so  as  to  postpone  the  rights  of 
creditors  attaching  subsequently,  but  before  the  cor- 
rection. (JVehster  v.  Hnivorth,  8  Cal.  21,  68  Am. 
Dec.  287;  Newhall  v.  Provost,  6  Cnl.  85.) 

§  226.  Return  on  second  writ.  When  an  offi- 
cer, by  virtue  of  a  second  attachment,  levies  on  prop- 
erty already  in  his  possession  by  virtue  of  a  former 
attachment,  it  is  only  necessary  for  him  to  return  that 
he  has  attached  the  interest  of  the  defendant  in  the 
property  then  in  his  possession.  (O'Connor  v.  Blake, 
29  Cal.  313.)  While  such  a  return  may  be  only 
necessary,  it  would  be  proper  and  more  satisfactory 
to  parties  interested  who  desire  information  regard- 
ing the  officer's  proceedings,  to  state  in  the  return 
that  the  property  was  attached  subject  to  levy  under 
certain  prior  writs.  The  plaintiff  should  be  enabled 
to  ascertain,  from  the  return  on  file  in  the  clerk's 
office,  what  advantages  he  has  gained  under  the  writ; 
and  where  a  return  only  states  a  portion  of  the  offi- 
cer's proceedings,  it  is  liable  to  mislead. 

§  227.  Preferred  labor  claims.  "In  cases  of  ex- 
ecutions, attachments,  and  writs  of  a  similar  nature, 
issued  against  any  person,  except  for  claims  for  labor 
done,  any  miners,  mechanics,  salesmen,  servants, 
clerks,  and  laborers,  who  have  claims  against  the  de- 
fendant for  labor  done,  may  give  notice  of  their 
claims,  and  the  amount  thereof,  sworn  to  by  the  per- 
son making  the  claim,  to  the  creditor  and  the  officer 


121  ATTACHMEx\T — GENERALLY.  §227 

executing  either  of  such  writs,  at  any  time  before  the 
actual  sale  of  property  levied  on;  and,  unless  such 
claim  is  disputed  by  the  debtor  or  a  creditor,  such 
officer  must  pay  to  such  person,  out  of  the  proceeds 
of  the  sale,  the  amount  each  is  entitled  to  receive  for 
services  rendered  within  the  sixty  days  next  preced- 
ing the  levy  of  the  writ,  not  exceeding  one  hundred 
dollars.  If  any  or  all  of  the  claims  so  presented,  and 
claiming  preference  under  this  section,  are  disputed, 
by  either  the  debtor  or  a  creditor,  the  person  present- 
ing the  same  must  commence  an  action  within  ten 
days  for  the  recovery  thereof,  and  must  prosecute  his 
action  w^ith  due  diligence,  or  be  forever  barred  from 
any  claim  of  priority  of  payment  thereof;  and  the 
officer  shall  retain  possession  of  so  much  of  the  pro- 
ceeds of  the  sale  as  may  be  necessary  to  satisfy  such 
claim  until  the  determination  of  such  action;  and  in 
case  judgment  be  had  for  the  claim,  or  any  part 
thereof,  carrying  costs,  the  costs  taxable  therein  shall 
likewise  be  a  preferred  claim  with  the  same  rank  as 
the  original  claim."  (California.  Code  Civ.  Proc, 
sec.    1206.) 

"The  debtor  or  creditor  intending  to  dispute  a 
claim  presented  under  the  provisions  of  the  last  sec- 
tion (section  1206)  shall,  within  ten  days  after  re- 
ceiving notice  of  such  claim,  serve  upon  the  claimant 
and  the  officer  executing  the  writ,  a  statement  in 
wTiting,  verified  by  the  oath  of  the  debtor,  or  the 
person  disputing  such  claim,  setting  forth  that  no 
part  of  said  claim,  or  not  exceeding  a  sum  specified, 
is  justly  due  from  the  debtor  to  the  claimant  for 
services  rendered  within  the  sixty  days  next  pre- 
ceding the  levy  of  the  writ.  If  the  claimant  bring 
suit  on  a  claim  which  is  disputed  in  part  only,  and 


§  228  SHERIFFS   AND   CONSTABLES.  122 

fail  to  recover  a  sum  exceeding  that  whicli  was  ad- 
mitted to  be  due,  he  shall  not  recover  costs,  but  costs 
shall  be  adjudged  against  him."  {California.  Code 
Civ.  Proc,  sec.  1207.) 

The  constitutionality  of  section  1206  of  the  Code 
of  Civil  Procedure,  which  provides  for  giving  pref- 
erence to  labor  claims  out  of  moneys  received  on 
execution,  is  affirmed  by  the  supreme  court,  in  the 
case  of  Mohle  ih  Tschirch,  63  Cal.  381. 

§  228.  Service  of  notice.  It  has  been  held  that 
the  service  of  the  notice  required  by  section  1206  of 
the  California  Code  of  Civil  Procedure,  ante,  may 
be  made  upon  the  attorney  for  the  attaching  creditor. 
{Carter  v.  Green  Mountain  G.  M.  Co.,  83  Cal.  222, 
23  Pac.  317.) 


CHAPTER    X. 

ATTACHMENT  OF   PERSONAL  PROPERTY. 

§  230.  Attachment  of  personal  property. 

§231.  Attachment  of  vessels. 

§  232.  Statutory  procedure  exclusive. 

§  2^;^.  Building  as  personal  property. 

§  234.  Necessity  of  prompt  action. 

§  235.  Liability  for  delay. 

§  235a.  Claim  by  third  party. 

§  235b.  Right  of  officer  to  indemnity. 

§  236.  What  acts  of  officer  are  justified  under  writ. 

§  237.  What  acts  necessary  in  making  levy. 

§  238.  W' hat  constitutes  taking  into  custody. 

§  239.  Property  must  be  within  view  of  officer. 

§  240.  Void  levy — Instances. 

§  241.  Property  must  be  kept  in  custody. 

§  242.  Sheriff  responsible  for  the  property  levied  upon. 

§  243.  Removal  of  attached  property. 

§  244.  Ponderous  articles. 

§  245.  Excessive  levy. 

§  246.  Authority  to  conduct  business  under  attachment. 

§  247.  As  to  residence  and  business  premises  combined. 

§  248.  Allowing  defendant  to  conduct  business. 

§  249.  Officer's  lien  dependent  on  possession. 

§  250.  Attachment  of  partnership  i:)roperty. 

§  251.  Sheriff's  keeper — Suggestions. 

§  252.  Expense  of  keeping  property. 

§  253.  Consideration  to  be  shown  to  defendant. 

§  254.  What  may  be  levied  upon. 

§  260.  Cannot  levy  on  valueless  property. 

§  261.  Levy  on  account-books  and  valueless  papers. 

§  262.  Excluding    from    premises    the    owner    of    attached 

property. 

§  263.  Right  of  officer  to  enter  business  premises. 

§  264.  In  custody  of  the  law. 


SHERIFFS  AND  CONSTABLES.  I  24 

§  265.     Levy  on  contents  of  safe. 

§  266.     Loss  of  race-horse. 

§  267.     Certain  building  materials  not  attachable. 

§  268.     Property  in  a  foreign  receiver's  hands. 

§  269.     Release  of  attachment. 

§  270.     Release  by  judgment  for  defendant. 

§271.     Release  on  undertaking  given. 

§  272.     Form  of  undertaking. 

§  273.     Sureties  on  bond  for  release. 

§  274.     Money  deposited  to  release  the  property. 

§  275.     Release  upon  plaintiff's  order. 

I  276.     Proceedings  on  release. 

§  277.     Death  of  defendant  destroys  attachment  lien. 

§  278.     Release  by  appeal. 

§  279.     Liability  for  failure  to  release. 

§  280.     Expense  of  keeping  property  levied  upon. 

§  281.     Sheriff's  fees  to  be  paid. 

§  282.     Change  of  sheriffs — Fees  on  release. 

§  283.     Attachment  of  mortgaged  personal  property. 

§  284.     Mortgage  of  personal  property. 

§  285.     Object  and  effect  of  record. 

§  286.     Requisites  for  validity. 

§  287.     Payment  of  mortgage  before  levy. 

§  288.     Liability  for  wrongful  levy. 

§  289.     Creditor  to  advance  payments. 

§  290.     Growing  crops  mortgaged — Continuance  of  lien. 

§  291.     Farming  on  shares — i\ttachable  interest. 

§  292.     Attachment  of  crop  after  severance. 

§  293.     Attachment  of  pledged  property. 

§  294.     Pledge  of  goods — Rights  of  pledgee. 

§  295.     Prior  liens  must  be  satisfied. 

§  296.     Liens  upon  personal  property. 

(a)  For  repairs. 

(b)  For  storage,  etc. 

(c)  For  purchase  price. 

(d)  Factor's  lien. 

(e)  Banker's  lien. 

(f)  Shipmaster's  Hen. 

(g)  Seaman's  Hen. 

(h)  Officers  Hen.  "  ' 


125  PERSONAL  PROPERTY.  §  230 

§  297.     Lien  for  cutting  timber,  etc. 

§  298.     Waiver  of  lien. 

§  299.     Sale  before  judgment — Perishable  property. 

§  230.    Attachment    of    personal    property.     The 

manner  of  making  levy  of  the  writ  upon  personal 
property  is  prescribed  in  subdivisions  3,  4,  and  5  of 
section  542  of  the  Code  of  Civil  Procedure,  and  is 
as  follows : — 

"3.  Personal  property,  capable  of  manual  delivery, 
must  be  attached  by  taking  it  into  custody. 

^'4.  Stocks  or  shares,  or  interest  in  stocks  or  shares, 
of  any  corporation  or  company,  must  be  attached  by 
leaving  with  the  president  or  other  head  of  the  same, 
or  the  secretary,  cashier  or  other  managing  agent 
thereof,  a  copy  of  the  writ,  and  a  notice  stating  that 
the  stock  or  interest  of  the  defendant  is  attached,  in 
pursuance  of  such  writ. 

"5.  Debts  and  credits,  and  other  personal  property, 
not  capable  of  manual  delivery,  must  be  attached  by 
leaving  with  the  person  owing  such  debts,  or  having 
in  his  possession  or  under  his  control  such  credits  and 
other  personal  property,  or  with  his  agent,  a  copy  of 
the  writ  and  a  notice  that  the  debts  owing  bv  him  to 
the  defendant,  or  the  credits  and  other  personal  prop- 
erty in  his  possession,  or  under  his  control,  belonging 
to  the  defendant,  are  attached  in  pursuance  of  such 
writ,  except  in  the  case  of  attachment  of  growing 
crops,  a  copy  of  the  wTit,  together  with  a  description 
of  the  property  attached,  and  a  notice  that  it  is  at- 
tached, shall  be  recorded  the  same  as  in  the  attach- 
ment of  real  property."  {See,  also,  sec.  264,  post, 
as  to  ^^Garnishment.") 


§§231-233       SHERIFFS  AND  CONSTABLES.  1 26 

§231.  Attachment  of  vessels.  In  California  the 
code  makes  special  provisions  for  attachment  and 
sale  of  steamers,  vessels,  and  boats.  (Code  Civ. 
Proc,  sees.  813-827.)  "The  writ  must  be  directed  to 
the  sherifif  of  the  county  within  which  the  steamer, 
vessel  or  boat  lies,  and  direct  him  to  attach  such 
steamer,  vessel  or  boat,  with  its  tackle,  apparel  and 
furniture,  and  keep  the  same  in  his  custody  until 
discharged  in  due  course  of  law.  The  sherifif  .  .  . 
must  execute  the  writ  without  delay,  and  must  at- 
tach and  keep  in  his  custody  the  steamer,  vessel  or 
boat  named  therein,  with  its  tackle,  apparel  and  fur- 
niture; .  .  .  but  the  sherifif  is  not  authorized  by  any 
such  writ  to  interfere  with  the  discharge  of  any  mer- 
chandise on  board  of  such  vessel,  or  with  the  removal 
of  any  trunks  or  other  property  of  passengers,  or  of 
the  captain,  mate,  seamen,  steward,  cook  or  other 
person  employed  on  board."  The  attachment  may 
be  released  upon  the  usual  undertaking,  if  there  are 
no  claims  for  wages  against  the  vessel.  (Code  Civ. 
Proc.,  sees.  818-823.) 

§  232.  Statutory  procedure  exclusive.  When  a 
method  of  procedure  is  laid  down  by  statute  for  the 
bringing  of  suits,  levy  of  attachments  and  executions 
against  vessels,  it  would  appear  that  such  procedure 
is  exclusive  of  all  provisions  of  the  general  law  con- 
flicting therewith;  but  that  all  provisions  of  the  gen- 
eral law  not  conflicting  are  operative.  This  is  in 
line  with  the  settled  rules  of  construction.  (Cali- 
fornia.    See  Code  Civ.  Proc.,  sees.  4482-4484.) 

§  233.  Building  as  personal  property.  When  a 
house  is  personal  property,  it  is  personal  property 


127  PERSONAL  PROPERTY.  §§234,235 

capable  of  manual  delivery,  and  must  be  attached 
as  such. 

§  234.  Necessity  of  prompt  action.  As  personal 
property,  capable  of  manual  delivery,  must  be  at- 
tached by  taking  it  into  custody,  so  no  unnecessary 
time  should  be  lost  in  executing  the  writ.  It  not  in- 
frequently happens  that  the  defendant  in  the  action 
has  become  suspicious  that  proceedings  are  about  to 
be  taken  against  his  property,  and  that  to  avoid  the 
anticipated  seizure  he  is  seeking  to  transfer  his  efifects. 
In  such  cases  moments  of  time  lost  represent  property 
fleeting  as  with  wings,  and  the  creditor  is  thus  mo- 
mentarily in  danger  of  losing  his  debt.  The  object 
of  the  writ  is  to  enable  him  to  secure  his  claim,  if  it 
be  a  just  one,  and  the  law  places  the  services  of  the 
officer  at  his  command  to  accomplish  that  purpose. 
After  carefully  inspecting  the  writ  to  assure  himself 
that  it  is  in  due  form,  and  complying  with  the  legal 
requirements  relating  to  his  fees  for  service,  the 
officer  must  indorse  upon  the  writ  the  time  of  its  re- 
ception. He  should  proceed  at  once  to  the  place 
indicated  to  him  as  the  location  of  the  property  and 
take  it  into  custody,  unless  the  defendant  give  him 
the  statutory  undertaking  to  prevent  the  attachment. 
{See,  also,  sec.  31,  ante.) 

§  235.  Liability  for  delay.  In  proceeding  to 
make  a  levy  upon  personal  property,  if  the  defendant 
express  a  wish  to  give  the  statutory  undertaking  to 
prevent  or  to  release  the  attachment,  the  officer  may 
exercise  his  judgment  as  to  whether  he  can  safely 
abstain  from  levying  until  the  defendant  shall  have 
had  sufficient  time  to  get  his  sureties  and  execute  the 


§  235a  SHERIFFS   AND   CONSTABLES.  128 

undertaking.  In  deferring  a  levy,  however,  the  offi- 
cer does  so  at  his  own  risk.  The  property  is  within 
his  reach,  and  he  becomes  responsible  to  the  phaintiff 
for  whatever  loss  may  be  sustained  by  reason  of  his 
neglect. 

§  235a.  CSaim  by  third  party.  The  numerous 
suits  to  be  found  in  the  court  records  against  sherifi's 
and  constables  would  seem  to  indicate  that  the  great- 
est risks  incurred  by  these  officers  in  civil  cases  lie 
in  the  taking  of  property  under  writs  of  attachment 
and  execution.  Where  the  property  belongs  to  the 
defendant,  and  there  is  no  controversy  concerning 
its  ownership,  the  path  of  duty  is  smooth  and  clear. 
The  officer  has  only  to  follow  the  course  pointed  out 
by  the  law  to  a  satisfactory  conclusion.  But  when 
the  property  levied  upon  is  claimed  by  a  stranger  to 
the  writ,  the  officer's  responsibility  begins.  When 
the  creditor  appeals  to  the  courts  for  aid  in  the  col- 
lection of  his  account,  the  debtor,  as  a  general  rule, 
either  succumbs  to  the  inevitable  force  of  circum- 
stances or  assumes  an  attitude  of  hostility.  If  he 
submits  to  a  seizure  and  sale  of  his  effects,  in  ac- 
knowledgment of  the  justness  of  the  creditor's  claim, 
the  officer's  course  is  simple  and  easily  performed. 
If,  on  the  other  hand,  the  debtor  choose  to  throw 
obstacles  in  the  creditor's  way,  the  officer  finds  him- 
self beset  with  difficulties  and  dangers.  Transfers 
of  personal  property  are  easily  effected,  and,  under 
the  pressure  of  legal  proceedings,  the  whilom  suc- 
cessful merchant,  contractor  or  what  not,  has  sud- 
denly become  insolvent.  If  the  transfer  has  been 
legally  made,  the  creditor  has  no  redress.  If  the 
requirements   of   the   law   have   not  been   complied 


129  PERSONAL  PROPERTY.  §  235b 

with,  concerning  the  delivery  and  possession  of  the 
property,  the  creditor  may  cause  it  to  be  seized  under 
legal  process  and  made  to  answer  for  the  debt.  Al- 
though the  debtor  may  have  actually  sold  his  prop- 
erty, received  the  purchase  money  for  it,  and  given 
written  evidence  to  the  purchaser  of  the  sale,  yet  in 
some  states  the  sale  will  not  stand  before  the  law  if 
there  has  not  been  an  actual  delivery  of  the  property 
and  a  continued  possession  thereof  in  the  purchaser. 
{See  chapter  on  '^Fraudulent  Transfers/'  sec.  691, 
post.)  Relying  upon  his  legal  rights,  which  so  close- 
ly adapt  themselves  to  his  moral  rights  in  the  matter, 
the  creditor  pursues  the  property  and  claims  his  rem- 
edy in  it.  The  sooner,  then,  that  the  officer  who  has 
levied  upon  the  property  secures  an  indemnity  bond 
with  sureties  upon  whom  he  can  rely  for  the  pay- 
ment of  any  judgment  that  may  be  rendered  against 
him  in  favor  of  the  claimant,  the  easier  will  be  the 
burden  of  his  duties  thereon. 

§  235b.  Right  of  officer  to  indemnity.  When  an 
attachment  or  execution  is  placed  in  the  hands  of 
an  officer  to  be  executed,  he  may  demand  indemnitv 
of  the  plaintiff  in  the  execution  before  he  can  be 
required  to  seize  property  in  possession  of  third 
parties  claiming  to  be  the  owners,  and  if  the  plain- 
tiff, upon  demand,  fails  to  indemnify  the  officer,  and 
he  thereupon  returns  the  writ  nulla  bona,  an  action 
for  false  return  cannot  be  maintained,  even  if  it 
should  turn  out  that  the  goods  so  found  in  the  hands 
of  strangers  claiming  to  own  them,  were  the  goods 
of  the  defendant  in  the  writ.  This  declaration  ap- 
pears in  the  opinion  of  the  court  in  the  case  of  Long 
V.  Neville,  36  Cal.  459,  95  Am.  Dec.  199,  but  it  is 


§236  SHERIFFS  AND  CONSTABLES.  130 

qualified  by  the  further  statement  that  "where  stat- 
utes exist  providing  for  calling  a  sheriff's  jury  pre- 
liminary to  demanding  indemnity,  it  may  be  neces- 
sary to  call  a  jury  before  demanding  the  indemnity, 
unless  the  calling  of  a  jury  be  waived."  An  officer 
called  upon  to  serve  a  precept,  either  by  attaching 
property  or  arresting  the  person,  if  there  be  any 
reasonable  grounds  to  doubt  his  authority  to  act  in 
the  particular  case,  has  a  right  to  ask  for  an  indem- 
nity. 

He  is  not  obliged  to  serve  process  in  civil  actions 
at  his  own  peril,  when  the  plaintiff  in  the  suit  is 
present,  and  may  take  the  responsibility  upon  him- 
self. 

The  risk  he  is  required  to  run  is  not  for  himself, 
but  for  the  benefit  of  the  attaching  creditor.  If  the 
goods,  moreover,  as  the  creditor  alleges,  are  the 
property  of  his  debtor  beyond  dispute,  he,  the  cred- 
itor, cannot  be  injured  by  giving  the  indemnity,  and 
if  they  are  not,  it  is  right  that  he  who,  for  his  own 
supposed  advantage,  insists  on  the  seizure,  should 
take  the  consequences  of  the  act. 

If  the  property  be  claimed  by  a  written  claim, 
verified  by  the  oath  of  the  claimant  or  that  of  his 
agent,  setting  out  his  right  to  possession,  the  sherifif 
is  not  bound  to  keep  the  property  unless  the  person 
in  whose  favor  the  writ  runs,  on  demand,  indemnify 
the  sheriff  against  such  claim  by  "an  undertaking 
by  at  least  two  good  and  sufficient  sureties."  (Cali- 
fornia.    Code  Civ.  Proc,  sec.  689;    Stats.   i()Oj,  p. 

683.) 

§  236.  What  acts  of  officer  are  justified  under 
writ.     The  writ  commands  the  officer  to  attach  and 


131  PERSONAL  PROPERTY.  §236 

safely  keep  all  the  property  of  the  defendant  within 
the  county  not  exempt  from  execution,  or  so  much 
thereof  as  may  be  sufficient  to  satisfy  the  plaintiff's 
demand,  unless  the  defendant  gives  the  statutory  un- 
dertaking for  release.    If  the  property  to  be  attached 
is  in  a  store,  he  may  seize  and  take  away  sufficient 
of  the  stock  of  goods  to  meet  the  requirements  of  the 
writ.     He  may  attach  money  in  a  drawer  or  safe  or 
wherever  found,  but  he  cannot  take  property  from 
the  person  of  the  defendant,  except  it  be  money  or 
other  valuables  in  a  bag  or  package  in  the  hand  of 
the  defendant.     He  may  not  break  open  the  outer 
door  or  window  of  a  dwelling-house  to  make  a  levy, 
nor  gain  admission  thereto  by  even  lifting  the  latch 
of  an  outer  door.    But  if,  after  gaining  peaceable  and 
lawful  admission  to  the  house,  there  is  property  of 
the  defendant  therein,  he  may  take  it,  even  if  he  be 
compelled  to  break  the  inner  doors  of  the  house  to 
reach  it.     If  property  to  be  attached  is  in  a  building 
other  than  a  dwelling,  he  may  use  whatever  force 
may  be  necessary  to  enable  him  to  serve  the  writ, 
but  he  must  first  announce  his  office  and  business 
and  make  demand  for  admission.     If  resistance   is 
made  to  the  service,  he  may  call  to  his  aid  whatever 
assistance  is  needful.     But  he  should  not  go  away 
from   the   place  where   the   property   is   situated   to 
procure  aid,  if  he  can  avoid  doing  so,  for  he  will  do 
so  at  the  risk  of  losing  the  goods  during  his  absence. 
Personal  property  is  not  attached  until  it  is  within 
the  view  of  the  officer.    The  mere  formality  of  stand- 
ing at  an  outer  door  of  a  building  in  which  goods 
are  situated,  and  placing  guards  or  keepers  around 
the  building  does  not  constitute  a  levy.    {Taffts  v. 
Manlove,   14  Cal.  47,  Ji^  Am.  Dec.  610;  sec.  244, 
post.) 


§  237  SHERIFFS  AND  CONSTABLES.  1 32 

The  extent  to  which  an  officer  may  proceed  in  the 
use  of  force,  in  the  breaking  into  a  building  to  levy 
upon  the  goods  of  a  debtor,  has  not  been  determined 
by  any  supreme  court  decisions  of  this  state.  Al- 
though a  man's  dwelling  is  by  law  deemed  to  be 
his  castle  and  sacred  from  intrusion,  it  is  not  so  with 
his  warehouse,  store,  or  place  of  business.  It  has 
been  definitely  settled  in  many  of  the  older  states 
whose  laws  are  similar  to  those  of  California  that 
an  officer  cannot  break  open  the  outer  door  of  the 
defendant's  dwelling,  nor  even  lift  the  latch  thereof 
to  gain  admission,  to  seize  the  defendant's  property. 
After  having  gained  peaceable  entrance,  however, 
he  may  break  the  inner  doors,  closets,  drawers,  boxes, 
chests,  or  trunks,  to  seize  property.  In  all  cases 
where  force  may  be  used,  the  officer  should  first 
demand  admission.  The  outer  door  of  the  defend- 
ant's store  or  other  place  of  business  may  be  broken 
open  by  an  officer  to  enable  him  to  make  a  levy, 
but  all  undue  violence  should  be  avoided  when  pos- 
sible. 

§  237.    What  acts  necessary  in  making  levy.     As 

the  writ  is  only  effectual  from  the  time  a  valid  and 
legal  levy  of  the  process  has  been  completed,  the 
question  often  arises.  What  constitutes  a  levy,  valid 
and  sufficient  in  law  to  vest  the  property?  In  Taffts 
V.  Manlove,  14  Cal.  47,  73  Am.  Dec.  610,  the  court 
say: — 

"It  may  be  admitted,  as  unquestionably  the  law  is, 
that  a  levy  may  be  good  as  against  the  defendant  in 
the  writ,  when  it  would  not  be  good  as  to  third  per- 
sons. But  we  apprehend  that  this  distinction  is  not 
based  upon  any  difference  in  the  legal  requisites  of 


133  PERSONAL  PROPERTY.  §  237 

a  levy,  but  in  fact  that  the  conduct  of  the  defendant, 
either  by  positive  or  negative  acts,  may  amount  to 
a  waiver,  or  an  estoppel,  or  agreement  that  that  shall 
be  a  levy  which,  without  such  conduct,  would  not  be 
sufficient.  However  this  may  be,  we  can  conceive 
of  no  principle  of  law,  and  have  been  referred  to  no 
case,  which  holds  that  the  acts  relied  on  by  appel- 
lant constitute  a  levy.  Waiving  everything  else,  the 
essential  element  of  an  intention  to  levy  prior  to  the 
entry  seems  to  be  wholly  wanting,  from  anything 
we  can  see  in  the  agreed  statement.  That  the  sheriff 
came  to  the  house  in  order  to  make  the  levy  is  very 
certain;  but  that  he  intended  to  make,  or  considered 
he  had  made,  a  levy  on  goods  in  the  house,  by  stand- 
ing at  one  door  and  putting  his  companion  at  the 
other,  does  not  appear.  He  made  then  no  note  or 
memorandum  of  the  levy — did  not,  perhaps,  even 
know  what  goods  were  in  the  store,  their  descrip- 
tion or  value;  and  besides  this,  demanded  the  key 
afterward  and  entered,  and  then  seized  the  goods, 
took  the  inventory,  and  indorsed  the  levy.  There  is 
neither  proof  nor  probability  that,  before  this  time, 
he  considered  he  had  seized  the  goods,  or  if  he  did, 
we  think  he  was  clearly  mistaken. 

"In  Crocker  on  Sheriffs  (sec.  425,  p.  172)  it  is 
said:  'A  levy  upon  personal  property  is  the  act  of 
taking  possession  of,  seizing  or  attaching  it  by  the 
sheriflf  or  other  officer,'  etc.  It  is  true,  the  author,  in 
section  427,  says:  'As  against  the  defendant  in  exe- 
cution, no  great  strictness  of  form  will  be  necessary 
in  making  a  levy  upon  personal  property.  Thus  the 
mere  entering  by  the  sheriff  of  the  property  of  the 
defendant,  with  his  assent,  upon  the  execution,  will 
be  conclusive  upon  such  defendant,  though  the  prop- 


§238  SHERIFFS  AND  CONSTABLES.  134 

erty  is  not  present,  and  the  officer  does  not  know 
where  it  is.'  But  this  authority  and  the  cases  cited 
by  appellant's  counsel  are  far  from  proving  the 
proposition  they  labor  to  sustain.  It  is  not  neces- 
sary to  review  these  cases,  for  all  of  them  turn  upon 
a  wholly  different  principle  from  that  invoked.  The 
principle,  namely,  that  the  assent  of  the  defendant 
is  sufficient  as  against  him,  even  where  the  goods 
are  not  within  view,  or  subject  to  the  dominion  of 
the  officer. 

"But  it  cannot  be  necessary  to  pursue  this  inquiry. 
It  is  too  plain  for  argument  that  there  can  be  no  levy 
when  the  officer  does  not  even  know  the  subject  of 
the  levy.  As  well  might  a  sherifif  stand  in  the  street 
and  levy  upon  the  contents  of  a  banking-house,  as 
to  stand  in  a  store  door  at  midnight,  and  claim  that 
merely  by  standing  there  and  preventing  any  person 
from  coming  into  the  store,  he  had  levied  on  the  con- 
tents, whatever  they  were,  of  the  store,  and  this  with- 
out having  any  knowledge  of  the  nature  of  the  stock, 
much  less  of  the  particular  description  or  value.  But, 
as  we  said  before,  nothing  appears  to  show  that  the 
mere  watching  and  guarding  of  the  storehouse  was 
meant  to  be  a  levy  on  the  property  inside;  but  these 
were  acts  merely  in  prosecution  of  the  design  to  enter 
the  house  and  levy  on  the  property  there,  which  pur- 
pose was  afterwards  accomplished."  (See,  also,  sees. 
238,  229,  post.) 

§  238.    What  constitutes  taking  into  custody.     If 

a  sherifif  attaches  personal  property  consisting  of  a 
portable  steam  threshing-engine  and  accompanying 
articles  used  for  threshing,  by  making  a  memoran- 
dum of  the  property  and  delivering  a  copy  of  the 


135  PERSONAL   PROPERTY.  §  239 

attachment,  summons,  and  complaint  to  the  defend- 
ant, and  then  directing  verbally  a  person  who  is  at 
work  one  hundred  yards  from  the  place  where  the 
property  lies,  to  look  after  it,  and  if  any  one  meddles 
with  it  to  tell  them  it  is  attached,  he  has  sufficient 
custody  of  the  property  as  against  persons  purchas- 
ing it  from  the  defendant  with  knowledge  of  the 
attachment.  (Rogers  v.  Gilmore,  51  Cat.  310.)  In 
deciding  this  case  the  court  said:— 

"The  statute  requires  that  the  officer  should  take 
the  property  into  custody.  And  it  seems  by  the  au- 
thorities that  what  that  means  is  governed  somewhat 
by  the  situation  or  relation  of  the  parties  making  the 
contest.  It  is  supposed  that  as  against  Gilmore  him- 
self there  was  sufficient  custody  of  this  property  to 
hold  it.  Against  another  attaching  creditor  there 
may  not  have  been.  Against  a  purchaser  from  Gil- 
more, in  good  faith,  there  may  not  have  been.  But 
the  court  is  of  the  opinion  that  the  defendants  pur- 
chasing from  him  with  notice  of  the  attachment,  it 
is  a  sufficient  custody  as  against  them."  (See,  also, 
sees.  237,  ante,  239,  post.) 

§  239.    Property  must  be  within  view  of  ofBcer. 

The  levy  to  be  valid  must  be  made  by  taking  the 
goods  into  his  custody  and  under  his  exclusive  con- 
trol. The  articles  must  be  within  the  power  of  the 
officer.  He  must  continue  to  retain  this  power  over 
them  by  remaining  present  himself,  by  appointing 
an  agent  or  keeper  in  his  absence,  by  taking  a  receipt 
for  the  property,  by  inventorying  them,  or  by  a  sea- 
sonable removal  of  them.  It  is  not  necessary  that 
they  should  be  removed,  but  they  must  in  all  cases 
be  put  out  of  the  control  of  the  debtor.    When  the 


§§  240-242       SHERIFFS  AXD  CONSTABLES.  136 

attachment  is  levied,  the  property  must  be  within  the 
view  and  subject  to  the  control  of  the  officer.  (See, 
also,  sees.  236,  237  ante.) 

§  240.  Void  levy — Instances.  A  levy  made  by  a 
constable  on  goods  which  he  does  not  see  or  have  in 
his  possession  is  void.  (Herron  v.  Hughes,  25  Cal. 
556.)  A  levy  brought  about  by  unlawfully  bringing 
property  from  one  jurisdiction  into  another  for  that 
purpose  is  held  to  be  utterly  void. 

§  241.  Property  must  be  kept  in  custody.  When 
the  statute  requires  the  officer  to  levy  upon  personal 
property  by  taking  it  into  custody,  the  officer  cannot 
safely  leave  it  in  the  possession  of  the  defendant  after 
making  the  levy.  The  principle  is  laid  down  in 
Duterte  v.  Driard,  7  Cal.  549,  and  Sanford  v.  Boring, 
12  Cal.  539,  that  if,  after  a  levy  of  a  writ  of  attach- 
ment upon  personal  property,  by  taking  it  into  pos- 
session, the  officer  permit  the  defendant  in  attach- 
ment to  resume  its  possession,  the  levy  would  be 
thereby  defeated  as  against  execution  or  attachment 
creditors  subsequently  levying  thereon,  or  against 
a  subsequent  purchaser  from  the  defendant  in  attach- 
ment, who,  upon  such  purchase,  takes  the  possession 
thereof. 

§  242.    SheriflF  responsible  for  the  property  levied 

upon.  A  sherifif  who  levies  a  writ  of  attachment 
upon  personal  property,  in  obedience  to  the  com- 
mands of  the  writ,  has  no  right  to  let  the  property 
go  out  of  his  hands,  except  in  due  course  of  law,  and 
if  he  does,  and  the  debt  is  lost,  he  is  responsible  to 
the   plaintiff   in   the   attachment  for  the   amount  of 


137  PERSONAL  PROPERTY.  §  243 

the  debt.  In  the  case  of  Sanford  v.  Boring,  the  de- 
fendant was  sued  as  sherifif  for  a  failure  to  make  a 
levy  and  sale  of  property,  previously  attached  in  the 
same  suit,  under  an  execution  issued  upon  a  judgment 
in  favor  of  plaintiff  and  against  Pultney  &  Arm- 
strong. When  the  sherifif  took  the  property  under 
the  writ  of  attachment  he  did  not  remove  it,  but  left 
it  all  in  the  stable  where  it  was  attached,  and  in  the 
possession  of  Armstrong,  one  of  the  then  defendants, 
who  continued  in  possession  and  conducted  the  busi- 
ness as  he  had  done  before.  The  sherifif  did  not  make 
the  money,  owing  to  a  subsequent  levy  and  sale  of 
the  property  under  execution  against  the  same  par- 
ties. In  deciding  the  case  adversely  to  the  ofBcer, 
the  supreme  court  says: — 

"The  levy  of  the  attachment  placed  the  property 
in  the  hands  of  the  sherifif  to  abide  the  judgment  and 
execution,  and  this  property  was  the  plaintifif's  se- 
curity for  his  debt.  If  the  sherifif  wasted  or  lost  it, 
or  sufifered  it  to  be  diverted  to  some  other  purpose, 
he  is  liable.  He  had  no  right  to  sufifer  the  property 
to  go  out  of  his  possession,  except  in  due  course  of 
law,  and  is  responsible  if  he  did."  {Sanford  v.  Bor- 
ing, 12  CaL  539.) 

§  243.  Removal  of  attached  property.  When 
goods  are  attached  in  a  store,  dwelling,  hotel,  or  other 
establishment,  and  the  defendant  shows  no  inclina- 
tion to  procure  a  release  of  the  attachment,  or,  on 
the  contrary,  desires  the  property  removed,  and  that 
no  keeper  be  left  upon  his  premises,  the  wishes  of 
the  owner  should  be  complied  with  as  soon  as  prac- 
ticable. How  soon  must  depend  upon  the  circum- 
stances of  the  case.    For  while  it  is  not  only  the  right 


§§244,245       SHERIFFS  AND  CONSTABLES.  1 38 

but  the  duty  of  the  officer  to  seize  the  creditor's  prop- 
erty, yet  the  creditor's  house  is  his  castle,  and  the 
officer  by  remaining  therein,  or  by  leaving  his  keeper 
therein,  an  unreasonable  length  of  time,  becomes  a 
trespasser  and  may  be  ejected  therefrom.  He  is  not 
bound  to  remove  the  goods  in  the  night-time,  when 
the  levy  has  been  made  at  too  late  an  hour  of  that 
day  to  enable  him  to  take  them  away  with  safety. 

§  244.  Ponderous  articles.  The  delivery  of  pon- 
derous articles  may  be  symbolical;  and  where  goods 
are  locked  up  a  delivery  of  the  key  is  so  far  a  delivery 
of  the  goods  that  it  will  support  an  action  of  trespass 
against  subsequent  purchasers  or  attaching  creditors 
who  take  possession  of  them.  (Adlard  v.  Rodjers, 
105  Cal.  327,  38  Pac.  889.) 

§  245.  Excessive  levy.  If  there  is  sufficient  prop- 
erty in  the  defendant's  possession  to  satisfy  the  claim 
of  the  attaching  creditor,  with  costs,  he  will  be  liable 
to  the  latter  if  he  does  not  levy  upon  sufficient  goods 
to  satisfy  the  judgment.  If,  on  the  other  hand,  he 
make  an  excessive  levy,  he  is  liable  to  the  defendant 
in  the  action.  Where  there  is  great  uncertainty  at 
the  time  of  the  levy  as  to  the  value  of  the  property 
attached,  and  it  is  subsequently  ascertained  that  its 
value  is  greatly  in  excess  of  the  demand  sued  for,  it 
does  not  follow  that  the  levy  was  therefore  excessive. 
It  is  the  duty  of  the  officer  to  seize  sufficient  property 
to  satisfy  the  amount  specified  in  the  writ — that  is 
to  say,  property  which  would  be  sufficient,  in  his 
judgment,  when  sold  at  public  auction.  There  are 
times  when  from  the  situation  of  the  property,  and 
other  circumstances,  there  must  be  great  uncertainty 


139  PERSONAL   PROPERTY.  §§246,247 

as  to  its  value,  and  because  it  may  turn  out  after- 
wards that  the  value  of  the  property  is  much  greater 
than  the  demand,  it  does  not  follov^  that  the  levy  was 
therefore  excessive.     {Sexey  v.  Adkison,  40  Cal.  408.) 

§  246.  Authority  to  conduct  business  under  at- 
tachment. An  attorney  has  no  authority,  by  virtue 
of  his  employment  as  such,  to  instruct  a  sheriff  to 
conduct  a  business,  such  as  a  restaurant,  upon  which 
an  attachment  has  been  levied,  and  thereby  bind  his 
client  for  the  expenses  incurred.  This  is  laid  down 
as  the  law  in  California  in  Alexander  v.  Denaveaux, 
53  Cal.  663,  59  Cal.  479,  and  is  in  accordance  with 
section  283  of  the  Code  of  Civil  Procedure  of  Cali- 
fornia, w^hich  in  subdivision  i  defines  the  authority 
of  an  attorney:  "To  bind  his  client  in  any  of  the 
steps  of  an  action  or  proceeding  by  his  agreement 
filed  with  the  clerk,  or  entered  upon  the  minutes  of 
the  court,  and  not  otherwise."  There  are  decisions 
to  the  contrary  in  other  states,  but  they  are  probably 
based  upon  less  stringent  laws  relating  to  clientage. 

§  247.    As   to   residence    and    business    premises 

combined.  A  building  may  be  occupied  partly  as 
a  dwelling  and  partly  for  business  purposes,  as  where 
the  occupant  conducts  a  store  for  the  sale  of  mer- 
chandise in  a  room  fitted  up  for  that  purpose,  and 
resides  with  his  family  in  other  parts  of  the  building.. 
In  such  cases  the  whole  building  is  not  regarded  as.a 
dwelling;  and  even  though  the  two  parts  are  ap- 
proached through  a  common  door,  this  door  may  be 
broken  for  the  purpose  of  seizing  goods  in  the  store. 
If,  however,  the  building  or  room  is  used  as  a  dwell- 
ing, the  owner's  right  to  shelter  himself  and  his  goods 


§§  248,  249       SHERIFFS   AND   CONSTABLES.  140 

therein  from  civil  process,  in  the  part  used  as  such 
dwelling,  is  not  forfeited  by  his  also  using  it  for 
business  purposes.  Hence  a  levy  efifected  by  breaking 
into  a  building  consisting  of  one  room,  in  which  the 
defendant  resided  and  also  carried  on  her  business 
as  a  milliner,  was  adjudged  to  be  a  trespass,  and  the 
officer  was  not  permitted,  in  mitigation  of  damages, 
to  prove  that  the  goods  levied  upon  had  been  sold, 
and  the  proceeds  applied  to  the  satisfaction  of  a 
judgment  against  the  defendant.  (Freeman  on  Exe- 
cutions, 256.) 

§  248.    Allowing  defendant  to  conduct  business. 

The  fact  that  a  stock  of  goods  in  a  store  is  attached 
is  not  positive  evidence  that  the  defendant  is  insolvent 
and  unable  to  pay  the  claim.  Where  the  officer 
knows  the  debtor  to  be  solvent,  he  may  be  morally, 
although  not  legally,  justified  in  permitting  the  debt- 
or's business  to  go  on  for  a  brief  time,  to  enable  him 
to  settle  with  the  attaching  creditor,  the  officer  in  the 
mean  time  placing  a  keeper  in  charge  of  the  goods, 
with  the  understanding  that  all  moneys  received  by 
sales  shall  be  turned  over  to  the  officer.  When  the 
officer  makes  this  concession  to  the  defendant,  he  of 
course  does  it  upon  his  own  responsibility,  and  is 
liable  for  any  loss  to  the  attaching  creditor  which 
may  result  therefrom.     [See,  also,  sec.  246  ante.) 

§  249.    Officer's  lien  dependent  on  possession.   An 

officer  who  levies  an  attachment  or  execution  upon 
personal  property  acquires  a  special  lien,  dependent 
on  possession,  upon  such  property,  which  author- 
izes him  to  hold  it  until  the  process  is  discharged  or 
satisfied,  or  a  judicial  sale  of  the  property  is  had. 
[California.     Civ.  Code,  sec.  3057.) 


141  PERSONAL  PROPERTY.  §§250,251 

§  250.    Attachment   of   partnership   property.     A 

sheriff,  under  an  attachment,  must  take  possession  of 
the  personal  property  upon  which  he  levies.  Being 
authorized  to  seize  the  interest  of  one  of  several  part 
owners  in  a  chattel,  he  must  take  the  sole  possession 
of  it,  in  order  that  it  may  be  forthcoming  at  the  day 
of  sale.  If  a  sheriff  has  a  writ  of  attachment  against 
one  member  of  a  partnership,  he  must  attach  the 
interest  of  that  partner  in  the  partnership  effects,  and 
in  order  to  do  so  may  take  possession  of  the  entire 
property.     {Clark  v.  Gushing,  52  Cal.  617.) 

This  subject  is  discussed  at  length  in  the  chapter 
on  "Executions  against  Personal  Property"  {sees. 
372-394  post)^  where  several  authorities  are  cited, 
the  rule  being  the  same  in  case  of  attachment  as  on 
levy  of  execution,  and  also  the  same  in  case  of  ten- 
ancy in  common  in  chattels. 

§  251.  Sheriff's  keeper — Suggestions.  In  the  at- 
tachment of  personal  property  the  officer  is  respon- 
sible for  its  value  from  the  moment  the  attachment 
is  levied.  If  the  plaintiff  recover  judgment,  he  will 
look  to  the  officer  for  the  value  of  the  goods  levied 
upon,  or  sufficient  thereof  to  satisfy  his  judgment. 

Hence  it  will  be  seen  that  the  preservation  of  the 
property  is  of  the  utmost  importance.  If  the  prop- 
erty, or  any  portion  of  it,  be  not  forthcoming  at  the 
proper  time,  the  officer  must  make  the  loss  good. 
When  a  keeper  is  required,  the  officer  should  select 
the  person  who  is  to  take  care  of  the  property. 
Neither  the  plaintiff  nor  the  defendant  may  dictate 
to  the  officer  as  to  who  shall  take  charge  of  the  goods. 
The  writ  commands  him  to  "attach  and  safely  keep 
the  property."    He  should  make  the  expense  of  keep- 


§251  SHERIFFS  AXD   CONSTABLES.  142 

ing  it  as  light  as  possible  consistent  with  its  safe 
keeping. 

Where  a  mutual  friend  of  the  attaching  creditor 
and  debtor  ofifers  to  act  as  keeper  without  pay,  and 
the  ofifer  is  accepted,  a  stipulation  to  that  eflfect  should 
be  given  to  the  officer,  in  writing,  signed  by  the  cred- 
itor and  debtor  and  the  keeper.  Experience,  how- 
ever, teaches  that  such  a  concession  is  often  produc- 
tive of  annoyance  and  loss.  The  person  thus  acting 
as  keeper  is  likely  to  consider  himself  less  the  trusted 
agent  of  the  officer  than  the  obliging  friend  of  one 
or  the  other  of  the  litigants.  In  such  cases  circum- 
stances are  liable  to  arise  wherein  he  cannot  faith- 
fully serve  two  masters — the  litigant  on  the  one  hand 
and  the  officer  on  the  other.  Such  a  course  may  some- 
times be  followed  with  safety,  when  there  is  but  one 
attachment  on  the  property.  But  if  a  second  writ  is 
placed  in  the  hands  of  the  officer,  the  officer  becomes 
also  liable  to  the  second  attaching  creditor,  and 
should  assume  such  control  over  the  goods  as  could 
not  be  questioned. 

In  one  case  a  sherifif  attached  the  contents  of  a 
livery  stable,  and,  by  request  of  the  attaching  cred- 
itor and  debtor,  placed  a  mutual  friend  in  charge 
as  keeper,  who,  by  verbal  agreement,  was  to  serve 
without  pay.  Some  days  afterwards  the  plaintiff 
notified  the  sheriff  that  the  suit  had  been  settled. 
The  officer  returned  the  writ  in  due  time  and  dis- 
missed the  afifair  from  his  mind.  In  the  mean  time 
the  stable  had  changed  hands,  and  in  the  course  of 
some  months  later  the  defendant  brought  an  action 
against  the  officer  for  the  return  of  the  property  at- 
tached or  the  value  thereof.  The  officer  found  to  his 
cost  that  he  had  been  dealing  with  unscrupulous  per- 


143  PERSONAL   PROPERTY.  §§  252,  253 

sons,  and  had  a  narrow  escape  from  paying  a  heavy 
pecuniary  penalty  for  his  laxity  in  dealing  with  them 
in  the  earlier  proceedings. 

§  2^2.  Expense  of  keeping  property.  In  keep- 
ing property  under  process,  the  same  prudence  and 
economy  should  be  exercised  as  in  the  ordinary  busi- 
ness afifairs  of  life.  No  unnecessary  expense  should 
be  incurred  therein.  Where  the  fee  bill  of  the 
county  provides  that  the  costs  of  the  officer  shall  be 
allowed  by  the  court,  a  statement  of  the  costs  should 
be  submitted  to  the  court  for  approval  before  the 
return  is  made  upon  the  writ. 

A  deputy  sheriff  who  seizes  property  under  an  at- 
tachment is  not  authorized,  by  virtue  of  his  office, 
to  bind  the  sheriff  by  contract  for  the  payment  of  a 
keeper  to  take  charge  of  the  property  so  attached. 
Special  authority  for  this  purpose  must  be  show^n. 
(Kriim  V.  King,  12  Cal.  412.) 

§  253.    Consideration  to  be  shown  defendant.     In 

making  the  seizure,  the  officer  should  exhibit  as 
much  regard  for  the  position  of  the  defendant  as  he 
can  consistently  with  the  duty  he  owes  to  the  law, 
the  creditor's  rights,  and  to  himself.  He  should  un- 
der no  circumstance  conduct  himself  tyrannically 
toward  the  debtor,  nor  proclaim  the  debtor's  mis- 
fortune from  the  house-top.  Yet,  to  constitute  a  valid 
levy,  the  courts  have  held  that  some  open,  unequivo- 
cal act  should  be  done  that  would  lead  all  persons 
to  know  that  the  property  was  no  longer  in  the  cus- 
tody of  its  former  owner,  but  in  that  of  the  law.  The 
levy  of  the  attachment  should  be  announced  to  who- 
ever may  be  present  in  charge  of  the  property,  and 


§  254  SHERIFFS  AND  CONSTABLES.  144 

if  if  is  necessary  for  the  safe  keeping  of  the  property, 
a  keeper  should  be  put  in  charge  thereof. 

§254.  What  may  be  levied  upon.  Plaintiff  was 
walking  along  the  street  with  a  bag  of  gold  coin  in 
his  hand.  Two  of  defendants,  a  deputy  sheriff  and 
a  constable,  seized  him  and  by  force  took  the  bag  of 
coin  from  him.  The  court  held  [Green  v.  Palmer, 
15  Cnl.  412),  that  from  its  seizure  thus  situated,  the 
plaintiff  could  not  claim  any  exemption,  as  he  might 
perhaps  do  in  reference  to  money  upon  his  person. 
Thus  situated,  it  was  like  a  horse  held  by  its  bridle, 
subject  to  seizure  under  execution  against  its  owner. 

As  indicating  an  instance  wherein  money  in  the 
hands  of  a  bailee  may  be  attached,  the  case  of  Chand- 
ler V.  Booth,  1 1  Cal.  342,  is  cited,  where  A,  who 
carried  on  a  printing-office  and  was  indebted  to  the 
hands  of  the  office,  placed  in  the  hands  of  B  a  certain 
amount  of  money,  with  directions  to  B  to  pay  the 
hands,  which  B  neglected  to  do,  and  where  there  was 
no  evidence  showing  that  the  hands  agreed  to  look 
to  B  for  their  money,  or  that  A  was  indebted  to  the 
hands  in  an  amount  equal  or  approximate  to  the  sum 
in  B's  hands,  and  the  money  was  subsequently  at- 
tached in  the  hands  of  B  at  the  suit  of  C  against  A, 
it  was  held  that  the  money  was  liable  to  the  attach- 
ment. 

The  sheriff  cannot  attach  money  collected  on  exe- 
cution in  his  own  hands.  If  at  any  time  such  money 
is  subject  to  other  process  in  his  hands,  such  process 
must  be  executed  by  the  coroner.  Money  in  the 
hands  of  the  sheriff,  collected  on  execution,  is  not 
a  debt  due  to  the  plaintiff  in  the  execution,  but  is  in 
the  custody  of  the  law  until  properly  disposed  of, 


H5 


PERSONAL   PROPERTY.  S  260 


and  is  not  the  subject  of  attachment  or  garnishment. 
(Clymer  v.  JJ'illis,  3  Cal.  363.) 

The  indebtedness  of  the  maker  upon  a  promissory 
note  before  its  maturity  is  not  the  subject  of  attach- 
ment. His  obligation  is  not  to  the  payee  named  in 
the  note,  but  to  the  holder,  whoever  he  may  be.  Nor 
can  such  indebtedness,  after  the  maturity  of  the  note, 
be  attached,  unless  the  note  is  at  the  time  in  the  pos- 
session of  the  defendant,  from  whom  its  delivery  can 
be  enforced  on  its  payment  upon  the  attachment. 
{Gregory  v.  Higgins,  10  Cal.  339.) 

Property  in  the  custody  of  the  law,  or  in  the  hands 
of  a  receiver  appointed  by  a  competent  court,  is  not 
liable  to  seizure  without  an  order  from  the  court 
having  charge  thereof.  {Yuba  County  v.  Adams  & 
Co.,  7  Cal.  35  ;  Adams  v.  Haskell,  6  Cal.  1 13,  65  Am. 
Dec.  491.) 

Funds  in  the  hands  of  a  receiver,  in  a  suit  for  dis- 
solution of  a  partnership,  are  subject  to  attachment 
at  any  time  before  a  final  decree  of  dissolution  and 
distribution.  {Adams  v.  IFoods,  9  Cal.  24.  See,  also, 
sec.  216,  ante.) 

§  260.  Cannot  levy  on  valueless  property.  Ill- 
feeling  engendered  by  a  refusal  of  a  debtor  to  pay 
his  honest  debts  sometimes  prompts  a  creditor  to 
levy  upon  valueless  property  for  the  purpose  of  an- 
noying the  unfortunate  delinquent  and  to  injure  his 
business.  In  illustration:  A  levy  upon  a  few  hun- 
dred copies  of  a  newspaper  as  they  come  from  the 
press  would  not  satisfy  the  costs  of  levy  and  sale 
thereof,  and  would  not  be  justifiable.  A  levy  can  be 
justified  only  on  the  ground  that  it  may  contribute 
to  the  payment  of  the  judgment,  and  not  merely  to 
the  mental  satisfaction  of  the  judgment  creditor. 


§§261,262       SHERIFFS   AND   CONSTABLES.  146 

§  261.  Levy  on  account-books  and  valueless 
papers.  The  authorities  uniformly  hold  that  where 
property  is  of  such  a  nature  that  an  attachment  of 
it  would  produce  a  sacrifice  and  great  injury  to  the 
defendant,  without  benefiting  the  plaintiff,  it  is  not 
attachable.  Such  is  the  rule  in  relation  to  the  de- 
fendant's private  papers,  or  his  books  in  which  his 
accounts  are  kept.  Much  less  would  an  attachment 
be  considered  to  create  a  lien  on  the  accounts  con- 
tained in  the  books.  {Drake  on  Attachments,  6th 
ed.,  sec.  249,  and  citing  Bradford  v.  Gillespie,  8 
Dana,  67.) 

Books  of  account  and  trial  balances  are  not  prop- 
erty of  such  tangible  character  that  they  can  be  made 
subject  to  such  levies.  They  may  be  evidences  of 
debt,  but  their  seizure  is  not  the  attaching  or  seizure 
of  the  debt  itself.  They  are  not  so  intimately  con- 
nected with  the  demands  charged  therein  that  the 
seizure  of  the  books  is  equivalent  to  the  seizure  of 
the  demands,  and  there  is  no  means  by  which  these 
demands  can  be  transferred  by  a  direct  levy  and 
sale.  [Freeman  on  Executions,  sec.  112;  Common- 
wealth V.  Abell,  6  /.  /.  Marsh,  476;  Thomas  v. 
Thomas,  2  A.  K.  Marsh,  430;  Wier  v.  Davis,  4  Ala. 
442;  Carlos  V.  Ansley,  8  Ala.  900;  Horton  v.  Smith, 
8  Ala.  73,  42  Am.  Dec.  628.)  In  Dart  v.  Woodhouse, 
40  Mich.  399,  29  Am.  Rep.  544,  Mr.  Justice  Camp- 
bell said:  "It  would  be  very  absurd  to  hold  that 
books  could  be  seized  and  sold  on  execution  which 
after  sale  the  purchaser  could  not  use." 

§  262.  Excluding  from  premises  the  owner  of 
attached  property.  The  entry  upon  the  premises 
even  of  the  defendant  in  execution  should  be  without 


147  PERSONAL   PROPERTY.  §§263,  264 

any  unnecessary  invasion  or  disturbance  of  his  rights. 
Hence  the  officer  has  no  right  to  exclude  him  from 
the  possession  of  any  part  of  the  premises,  or  to 
otherwise  take  exclusive  possession  thereof.  This 
rule  applies  to  levy  upon  goods  in  a  store.  Thev 
should  be  removed  within  a  reasonable  time,  instead 
of  taking  possession  of  the  store  and  excluding  the 
owner  therefrom.  (Freeman  on  Executions,  256.) 
An  officer  attaching  machinery  in  use  at  the  time 
by  the  defendant  upon  premises  leased  by  him  has 
no  right  to  exclude  the  defendant  from  the  premises, 
notwithstanding  the  lease  be  also  attached.  (Grey  v. 
Sheridan  Electric  Light  Co.,  19  Abb.  N.  C.  (N.  Y.) 
Sup.  Ct.  152.) 

§  263.    Right  of  officer  to  enter  business  premises. 

An  officer  has  the  right  to  enter  a  business  place 
against  the  will  of  the  occupant,  permission  having 
been  asked  and  refused,  and  to  seize  the  property 
therein  belonging  to  the  occupant  and  subject  to  levy. 
It  is  impossible  to  make  such  levy  in  many  cases,  as 
where  a  whole  stock  of  goods  is  seized,  without  tak- 
ing possession  of  the  place  where  the  goods  are.  The 
officer  must  not  linger  longer  than  reasonably  neces- 
sary to  carefully  pack  up  and  prepare  the  goods  for 
removal  (JFaples  on  Attachments,  sec.  298)  ;  to  do 
this  packing  may  take  an  hour  or  jt  may  require  a 
week.  (Ramsey  v.  Burns,  27  Mont.  711,  69  Pac. 
711.) 

§  264.  In  custody  of  the  law.  Where  money 
has  been  deposited  in  the  hands  of  a  clerk  in  lieu  of 
an  appeal  bond,  it  is  held  that  it  may  be  attached  by 
garnishment  at  the  suit  of  a  creditor  of  the  depositor. 


§  265  SHERIFFS  AND  CONSTABLES.  1 48 

And  where,  after  satisfying  an  execution  from  the 
proceeds  of  a  sale,  the  officer  has  a  surplus  in  his 
hands,  it  may  be  so  attached  by  a  creditor  of  the 
party  to  whom  it  is  due;  as  it  cannot  be  regarded  as 
money  in  the  custody  of  the  law,  but  as  the  money  of 
the  party  to  whom  it  belongs.  And  so  it  is  held  that 
an  accepted  draft  filed  in  a  case  with  a  clerk  may  be 
attached  by  citing  the  clerk  in  whose  custody  it  is, 
as  garnishee,  and  proving  such  custody  by  his  answers 
to  interrogatories.  So,  also,  it  is  held  that  the  sheriff 
may  be  charged  as  garnishee,  on  account  of  money 
collected  for  the  defendant  on  execution,  although 
the  money  has  never  been  demanded  of  him.  Where 
the  money  in  the  hands  of  the  officer  is  subject  to  the 
order  of  either  of  the  parties  to  the  action,  and  such 
party  has  a  right  of  action  therefor,  or  may  perfect 
such  right  by  simply  making  a  demand,  no  reason 
is  apparent  for  regarding  the  money  so  held  as  in 
the  custody  of  the  law.  And  any  support  that  a 
denial  of  the  right  of  a  creditor  of  the  party  so  en- 
titled to  attach  such  money  receives,  must  come  from 
the  statutes,  or  stare  decisis.  The  statute  may.be  so 
framed  that,  without  expressly  excluding  officers 
from  the  classes  subject  to  garnishment,  a  strict  in- 
terpretation will  not  include  them.  But  in  the  ab- 
sence of  any  exclusion,  either  express  or  implied,  or 
of  circumstances  that  should  render  the  funds  in  their 
hands  exempt  from  attachment,  on  principle  they 
should  be  required  to  answer  the  process  of  garnish- 
ment precisely  as  any  other  custodian  of  the  debtor's 
effects.     {Wade  on  Attachment,  sec.  "3 ^7.) 

§  265.     Levy   on   contents    of   safe.      When    the 
sheriff  levied  upon  the  safe  and  its  contents  the  safe 


149  PERSONAL   PROPERTY.  §§  266-268 

was  locked,  and  he  was  unable  at  the  time  to  take 
possession  and  make  an  inventory  of  the  contents. 
The  fact  did  not  defeat  the  levy,  however.  The  con- 
tents of  the  safe,  including  the  notes  in  suit,  were  in 
the  possession  of  the  sherifif  through  his  possession 
of  the  receptacle  in  which  they  were  stored.  There 
was  a  valid  lien  upon  the  notes  by  means  of  such 
lew  upon  the  safe  and  contents.  {Smith  v.  Clark, 
100  loii-a,  47,  69  N.  W .  loi  I.) 

§  266.  Loss  of  race-horse.  If  a  race-horse  is 
wrongfully  detained  under  attachment,  the  owner 
may  recover  damages  for  his  depreciation  in  value 
by  reason  of  improper  treatment,  but  he  cannot  re- 
cover as  damages  entrance  fees  and  fines  paid  after 
the  horse  was  attached,  for  his  entry  in  certain  future 
races  in  which  he  was  unable  to  start  by  reason  of 
the  attachment.  (Riley  v.  Littlefield,  84  Mich.  22, 
47  iV.  W.  576.) 

§  267.    Certain  building  materials  not  attachable. 

"Whenever  materials  shall  have  been  furnished  for 
use  in  the  construction,  alteration  or  repair  of  any 
building  or  other  improvement,  such  materials  shall 
not  be  subject  to  attachment,  execution  or  other  legal 
process,  to  enforce  any  debt  due  by  the  purchaser  of 
such  materials,  except  a  debt  due  for  the  purchase 
money  thereof,  so  long  as  in  good  faith  the  same  are 
about  to  be  applied  to  the  construction,  alteration, 
or  repair  of  such  building,  mining  claim,  or  other 
improvement."  [California.  Code  Civ.  Proc,  sec. 
1 196.) 

§  268.    Property   in   a   foreign   receiver's   hands. 

Personal  property  in  the  lawful  custody  of  a  foreign 


§§  269,  270       SHERIFFS  AND  CONSTABLES.  150 

receiver,  brought  into  a  state  in  the  course  of  busi- 
ness, is  subject  to  attachment  under  its  laws  by  a 
creditor  resident  of  the  state,  and  the  attaching  cred- 
itor has  the  superior  right.  {Humphreys  v.  Hop- 
kins, 81  Cal.  551,  15  Am.  St.  Rep.  76,  22  Pac.  892, 
6L.R.A.j()2.) 

§  269.  Release  of  attachment.  An  attachment 
as  to  any  real  property  may  be  released  by  a  writing 
signed  by  the  plaintifif  or  his  attorney,  or  the  officer 
who  levied  the  writ,  and  acknowledged  and  recorded 
in  the  like  manner  as  a  grant  of  real  property;  and 
upon  the  filing  of  such  release  it  is  the  duty  of  the 
recorder  to  note  the  same  on  the  record  of  the  copy 
of  the  writ  on  file  in  his  office.  Such  attachment  may 
also  be  released  by  an  entry  in  the  margin  of  the 
record  thereof  in  the  county  recorder's  office  in  the 
manner  provided  for  the  discharge  of  mortgages  un- 
der section  twenty-nine  hundred  and  thirty-eight  of 
the  Civil  Code.  {California.  Code  Civ.  Proc,  sec. 
560;  Stats.  1907,  p.  709.) 

§  270.    Release  by  judgment  for  defendant.     "If 

the  defendant  recover  judgment  against  the  plain- 
tifif, any  undertaking  received  in  the  action,  all  the 
proceeds  of  sales  and  money  collected  by  the  sheriff, 
and  all  property  attached  remaining  in  the  sheriff's 
hands,  must  be  delivered  to  the  defendant  or  his 
agent."     (California.     Code  Civ.  Proc,  sec.  553.) 

In  case  of  a  dismissal  of  an  action  by  a  justice  of 
the  peace  for  non-appearance  of  the  plaintiff,  the 
judgment  for  defendant  operates  as  a  dissolution  of 
an  attachment,  although  the  justice  reinstates  the 
case,  and  the  parties  appear  and  try  it.  {O'Connor 
V.  Blake,  29  Cal.  313.) 


151  PERSONAL   PROPERTY.  §§271-273 

§  271.  Release  on  undertaking  given.  Statutory 
provision  is  made  for  the  release  of  the  attachment 
upon  the  giving  of  a  bond  to  be  taken  by  the  sheriff. 
When  a  sufficient  undertaking  is  taken  by  him,  his 
duty  in  the  premises  is  discharged,  and  he  has  no 
further  responsibility  in  the  matter.  {Curiae  v. 
Packard,  29  Cal.  194;  also,  Preston  v.  Hood,  64  Cal. 
405,   I  Pac.  487.) 

In  going  to  make  a  levy  upon  personal  property, 
the  officer  will  sometimes  find  it  convenient  to  have 
with  him  a  blank  undertaking  to  prevent  attachment, 
and  also  a  blank  undertaking  for  the  release  of  an 
attachment.  It  is  not  obligatory  upon  him  to  have 
such  blanks  with  him,  but  much  time  and  annoyance 
may  sometimes  be  saved  by  having  them  at  hand, 
where  the  defendant  wishes  to  retain  the  custody  of 
his  property.  (California.  Code  Civ.  Proc,  sec. 
540- ) 

§  272.  Form  of  undertedcing.  A  common-law 
bond,  in  form,  upon  the  prescribed  statutory  condi- 
tions, given  to  a  sherifif  to  procure  a  discharge  of 
goods  attached,  is  a  sufficient  compliance  with  the 
provisions  of  the  statute.  (Curiae  v.  Packard,  29 
Cal.  194.)  In  this  case  the  court  decided  that  the 
undertaking,  if  sufficient,  is  to  be  taken  by  the  sherifif 
when  the  property  has  been  as  well  as  when  it  is 
about  to  be  attached. 

§  273.  Sureties  on  bond  for  release.  If  the  de- 
fendant desires  to  give  the  statutory  undertaking  for 
release  of  the  attachment,  the  officer  should  satisfy 
himself  that  the  sureties  are  able  to  respond  to  the 
obligation  they  assume.    He  should  question  the  per- 


§§274,275       SHliRIFFS   AND   CONSTABLES.  152 

sons  who  present  themselves  to  him  as  sureties  con- 
cerning their  proper  qualifications,  and  seek  to  secure 
the  plaintiff  as  he  would  himself. 

§  274.    Money  deposited  to  release  the  property. 

Where  the  defendant  in  an  action,  whose  property 
had  been  attached  by  the  sheriff,  deposited  with  the 
sheriff  a  sum  of  mone}^  in  gold  coin  in  lieu  of  an 
undertaking  to  procure  a  release  of  the  property, 
and  the  property  was  thereupon  released,  and  after- 
wards, by  agreement  between  the  parties  to  the  ac- 
tion, the  money  was  taken  from  the  sheriff  and  loaned 
out  pending  the  litigation,  and  a  note  drawing  inter- 
est taken  therefor,  payable  to  plaintiff's  attorney: 
Held,  that  after  plaintiff  recovered  judgment,  the 
persons  who  borrowed  the  money  did  not  hold  it  in 
the  character  of  bailees  of  the  sheriff,  but  that  they 
were  mere  debtors,  and  the  money  in  their  hands  a 
mere  debt,  to  be  treated  as  such  on  proceedings  sup- 
plementary to  execution.  {Hathaway  v.  Brady,  26 
Cal.  581.)  Under  such  conditions  the  money  ceases 
to  be  in  the  custody  of  the  law. 

§  275.  Release  upon  plaintiff *s  order.  The  direc- 
tion to  release  the  attachment  should  be  in  writing, 
signed  by  the  plaintiff  or  his  attorney.  There  may 
be  circumstances  attending  a  case  where  such  direc- 
tion should  come  from  the  plaintiff's  attorney,  and 
not  from  the  plaintiff.  The  plaintiff  may,  through 
ignorance,  divest  himself  of  his  rights  by  causing  a 
release  to  be  precipitately  made;  and  hence  as  a  rule 
it  is  generally  most  prudent  to  look  to  the  attorney 
for  such  instructions.  In  the  case  of  Perlberg  v. 
Gorham,  10  Cal.   121,  where  a  partnership  existed 


153  PERSONAL   PROPERTY.  §§276,277 

between  two  persons  in  the  purchase  of  goods,  and 
they  subsequently  brought  suit  to  recover  their  value 
from  a  trespasser- who  had  seized  them,  it  was  held 
that  one  partner  is  competent  to  execute  a  release  in 
the  name  of  himself  and  copartner.  But  it  is  not  al- 
ways safe  to  recognize  such  a  right.  In  the  case  of 
Perlberg  v.  Gorham,  23  Cal.  349,  the  defendant  Gor- 
ham  as  sherifif  levied  on  goods  claimed  by  the  plain- 
tiffs. After  suit  had  been  brought,  one  of  the  attach- 
ing creditors  procured  a  release  from  one  of  the 
plaintiffs,  executed  in  the  name  of  both,  of  all  ac- 
tions, etc.;  it  was  held  that  if  this  release  was  ob- 
tained by  fraud,  it  was  void,  and  the  sheriff  could 
derive  no  advantage  from  it,  although  he  was  not 
implicated  in  and  knew  nothing  of  the  fraud. 

§  276.  Proceedings  on  release.  When  an  attach- 
ment on  personal  property  is  released,  the  property 
should  be  returned  to  the  person  from  whom  it  was 
taken.  Where  the  property  has  been  taken  from  the 
defendant,  it  should  be  returned  to  him  or  to  his 
agent,  or  to  such  person  as  the  defendant  may  in 
writing  direct  the  officer  to  deliver  it  to.  The  officer 
should  take  a  receipt  therefor  from  the  person  to 
whom  it  is  delivered.  An  officer  cannot  with  safety 
ignore  these  seemingly  unimportant  business  formal- 
ities. 

§  277.    Death  of  defendant  destroys  attachment 

lien.  If  the  defendant  die  after  the  levy  of  an  at- 
tachment upon  his  property  and  before  judgment, 
his  death  destroys  the  lien  of  the  attachment,  and  the 
attached  property  passes  into  the  hands  of  the  ad- 
ministrator, to  be  administered  on  in  due  course  of 


§§278-281        SHERIFFS   AND   CONSTABLES.  1 54 

administration.  (Myers  v.  Mott,  29  Cal.  359,  89  Am. 
Dec.  49.) 

§  278.  Release  by  appeal.  After  judgment  in 
favor  of  defendant,  the  attachment  is  at  once  and 
ipso  facto  discharged,  under  the  express  provisions 
of  section  553  of  the  California  Code  of  Civil  Pro- 
cedure, although  an  appeal  be  taken  by  the  plaintiff, 
on  which  appeal  he  ultimately  obtains  judgment.  An 
attachment,  being  merely  a  creature  of  statute,  can 
continue  no  longer  than  the  statute  provides.  (Love- 
land  V.  Alvord  C.  Q.  Min.  Co.,  76  Cal.  562.) 

§  279.  Liability  for  failure  to  release.  After  an 
order  of  court  for  the  release  of  an  attachment,  the 
sureties  on  the  attachment  bond  become  liable  and 
the  possession  by  the  sheriff,  if  retained,  becomes  un- 
lawful. (Gardner  v.  Donnelly,  86  Cal.  367,  18  Pac. 
682.) 

§  280.    Expense  of  keeping  property  levied  upon. 

The  sheriff  is  allowed  his  necessary  expenses  in  keep- 
ing and  preserving  property  seized  on  attachment  or 
execution,  the  amount  to  be  fixed  by  the  court  and 
paid  out  of  the  fees  collected  in  the  action.  (Cali- 
fornia.    Stats.  1893,  p.  507.) 

§  281.  Sheriff's  fees  to  be  paid.  The  .officer 
cannot  be  compelled  to  release  property  from  attach- 
ment until  his  fees  are  paid.  (Robinett  v.  Connolly, 
76  Cal.  56,  18  Pac.  130;  Perrin  v.  McMann,  97  Cal. 
52,  31  Pac.  837.)  But  where  levy  has  been  released 
by  a  stay-bond,  he  must  demand  payment  and  offer 
to  return  the  property  upon  payment  of  the  amount 
lawfully  due  to  him.  (Sam  Yuen  v.  McMann,  99 
Cal.  497,  34  Pac.  80.) 


155  PERSONAL   PROPERTY.  §§282-284 

§  282.    Change  of  sheriffs —Fees  on  the  release. 

When  a  sheriff  goes  out  of  office,  holding  attached 
property  in  his  possession,  the  party  wishing  to  re- 
lease must  seek  him  and  pay  his  fees  in  full  up  to  the 
time  of  the  release.  (Perrin  v.  McMnnn,  97  Cal.  52, 
31  Pac.  837.) 

§  283.  Attachment  of  mortgaged  personal  prop- 
erty. When  an  officer  is  directed  to  attach  personal 
property  of  such  character  as  may  by  law  be  the 
subject  of  a  valid  mortgage  as  against  third  parties, 
he  should,  before  proceeding  to  levy,  or  as  soon  there- 
after as  possible,  ascertain  if  the  property  has  been 
mortgaged;  otherwise  he  may  render  himself  liable 
for  seizing  mortgaged  property  without  first  satisfy- 
ing the  mortgage  claim,  as  he  is  bound  to  take  notice 
of  all  valid  mortgages  of  record  made  under  the 
statute  authorizing  mortgages  of  personal  property. 

§  284.  Mortgage  of  personal  property.  In  Cali- 
fornia the  following  personal  property  may  be  mort- 
gaged, so  as  to  be  valid  security  as  against  third 
parties  without  change  of  possession : — 

"i.  Locomotives,  engines  and  other  rolling  stock 
of  a  railroad. 

"2.  Steamboat  machinery,  the  machinery  used  by 
machinists,  foundrymen  and  mechanics. 

"3.  Steam  engines  and  boilers. 

"4.  Mining  machinery. 

"5.  Printing  presses  and  material ;  all  type-setting 
machines,  their  material  and  accessories. 

"6.   Professional  libraries. 

"7.  Instruments  of  surveyors,  physicians,  and 
dentists. 

"8.  Upholstery,  furniture  and  household  goods. 


§  284  SHERIFFS  AND   CONSTABLES.  1 56 

"9.  Oil  paintings,  pictures  and  works  of  art. 

"10.  All  growing  crops,  including  grapes  and 
fruit. 

"11.  Vessels  of  more  than  five  tons'  burden. 

"12.  Instruments,  negatives,  furniture  and  fixtures 
of  a  photograph  gallery. 

"13.  The  machinery,  casks,  pipes,  tubes  and  uten- 
sils used  in  the  manufacture  or  storage  of  wine,  fruit 
brandy,  fruit  syrup  or  sugar;  also  wines,  fruit  brandy, 
fruit  syrup,  or  sugar,  with  the  cooperage  in  which 
the  same  are  contained. 

"14.   Pianos  and  organs. 

"15.   Iron  and  steel  safes. 

"16.  Cattle,  horses,  mules,  swine,  sheep,  goats,  and 
turkeys,  and  the  increase  thereof. 

"17.  Harvesters,  threshing  outfits,  hay  presses, 
wagons,  farming  implements,  and  the  equipments  of 
a  livery  stable,  including  buggies,  carriages,  harness, 
robes. 

"18.  Abstract  systems,  books,  maps,  papers,  and 
slips  of  searchers  of  records. 

"19.  Raisins  and  dried  fruits,  cured  or  in  process 
of  being  cured.  Also  all  boxes,  fruit  graders,  drying 
trays  and  fruit  ladders. 

"20.  Bees  and  bee-hives,  apiaries  and  apiary  stock, 
including  frames,  combs  and  extractors,  also  honey 
at  apiaries. 

"21.  Machinery,  tanks,  stills,  agitators,  leachers 
and  apparatus  used  in  producing  and  refining  petro- 
leum, asphaltum,  fuel  oils,  lubricating  oils  and 
greases. 

"22.  The  bedroom  furniture,  carpets,  tables,  stoves, 
ranges,  cooking  utensils  and  all  furniture  and  equip- 
ments usually  found  in  a  hotel. 


157  PERSONAL  PROPERTY.  §§285,286 

"23.  All  machinery  used  in  the  sawing  and  pro- 
duction of  lumber,  or  the  manufacture  of  lumber 
into  lumber  products,  also  wagons,  logging  trucks, 
donkey  engines  and  cables,  chains  and  stretchers,  and 
all  tools  and  appliances  used  in  the  manufacture  of 
lumber. 

"24.  All  furniture,  fixtures,  bars  and  appurte- 
nances of  saloons."  {California.  Civ.  Code,  sec. 
2955;  Stats.  1907,  p.  886.) 

§  285.  Object  and  effect  of  record.  The  object 
to  be  attained  by  requiring  the  recording  of  mort- 
gages of  personal  property  is  the  same  as  that  pro- 
viding for  the  registration  of  mortgages  of  real 
estate.  The  same  general  principles  are  alike  ap- 
plicable in  each  case.  The  design  is  to  give  notice  to 
the  public  of  all  existing  encumbrances  upon  real  or 
personal  estate  by  mortgage.  The  recording  of  the 
mortgage  is  therefore  made  by  the  code  the  equiv- 
alent of  an  immediate  delivery  and  continued  change 
of  possession,  and  creditors  and  subsequent  purchasers 
or  encumbrancers  are  bound  by  the  notice  which  it 
imparts.  By  and  under  it,  the  mortgagee  is,  in  law, 
in  possession  of  the  chattels,  and  an  officer  having  an 
attachment  or  execution  against  the  mortgagor,  is  not 
authorized  to  levy  upon  them  without  first  paying 
the  mortgage  debt. 

§  286.  Requisites  for  validity.  "A  mortgage  of 
personal  property  is  void  as  against  creditors  of  the 
mortgagor  and  subsequent  purchasers  and  encum- 
brancers of  the  property,  in  good  faith  and  for  value, 
unless: — 


§  287  SHERIFFS  AND  CONSTABLES.  1 58 

"i.  It  is  accompanied  by  the  affidavit  of  all  the 
parties  thereto  that  it  is  made  in  good  faith  and  with- 
out any  design  to  hinder,  delay  or  defraud  creditors. 

"2.  It  is  acknowledged  or  proved,  certified  and  re- 
corded in  like  manner  as  grants  of  real  property." 
{California.     Civ.  Code,  sec.  2957.) 

A  mortgage  of  personal  property  must  be  record- 
ed in  the  office  of  the  county  recorder  of  the  county 
in  which  the  mortgagor  resides,  if  the  mortgagor  be 
a  resident  of  this  state,  and  it  shall  also  be  recorded 
in  the  county  in  which  the  property  mortgaged  is 
situated,  or  to  which  it  may  be  removed.  (California. 
Stats.  1907,  p.  853.) 

§  287.  Payment  of  mortgage  before  levy.  "Per- 
sonal property  mortgaged  may  be  taken  under  at- 
tachment or  execution  issued  at  the  suit  of  a  creditor 
of  the  mortgagor;  .  .  .  but,  before  the  property  is 
so  taken,  the  officer  must  pay  or  tender  to  the  mort- 
gagee the  amount  of  the  mortgage  debt  and  interest, 
or  must  deposit  the  amount  thereof  with  the  county 
clerk  or  treasurer,  payable  to  the  order  of  the  mort- 
gagee."    (California.     Civ.  Code,  sees.  2968,  2969.) 

A  transfer  of  property  by  chattel  mortgage,  prop- 
erly executed  and  recorded,  passes  the  title  without 
delivery.  (California.  Civ.  Code,  sec.  2<^^J.)  The 
mortgagee  is,  in  law,  in  possession  of  the  mortgaged 
chattels,  and  an  officer  having  an  attachment  or  exe- 
cution against  the  mortgagor  is  not  authorized  to 
levy  upon  them  without  first  paying  the  mortgage 
debt.     (Berson  v.  Nunan,  63  Cal.  550.) 

A  transfer  of  property  by  chattel  mortgage,  exe- 
cuted with  the  formalities  of  law  and  recorded, 
passes  the  title,  although  conditional  and  defeasible, 


159  PERSONAL   PROPERTY.  §288 

whether  the  property  be  or  be  not  delivered.  The 
rights  of  the  parties  to  the  mortgage  are  fixed  by- 
the  code.  They  are  purely  statutory  rights,  and  as 
the  code  declares  that  such  a  mortgage  is  not  void 
as  to  creditors  or  subsequent  purchasers,  for  want  of 
an  actual  and  continued  change  of  possession,  the 
title  of  the  mortgagee  is  not  affected  for  want  of  it. 
{Hey  I  and  v.  Badger,  35  Cal.  404.) 

Where,  on  the  trial  of  an  action  for  the  replevin 
of  goods  from  a  defendant  who,  in  answer,  admitted 
the  taking,  but  justified  under  legal  process  against 
a  third  party,  held  and  served  by  him  as  sheriff,  it 
was  proved  by  plaintiff  that  he  held  an  unsatisfied 
chattel  mortgage  of  the  goods,  duly  executed  by  said 
third  party,  for  their  purchase  price,  of  which  de- 
fendant had  notice:  Held,  that  upon  this  state  of 
facts,  and  in  absence  of  any  evidence  tending  to  justi- 
fy the  taking  of  the  goods  by  defendant,  plaintiff  was 
entitled  to  judgment  for  their  recovery.  {Stringer 
V.  Davis,  35  Cal.  25.) 

§  288.  Liability  for  wrongful  levy.  Under  a  stat- 
ute requiring  prior  payment  of  the  mortgage  debt 
before  mortgaged  personal  property  can  be  attached, 
the  officer  is  liable  to  the  mortgagee  as  for  a  con- 
version if  he  levies  an  attachment  and  appoints  a 
keeper  without  complying  with  the  statute,  although 
he  does  not  move  or  otherwise  disturb  the  property. 
{Iru-in  V.  McDowell,  91  Cal.  119,  27  Pac.  601.) 

If  the  officer  seize  such  property  without  pavment 
of  the  mortgaged  debt,  the  party  injured  mav,  by 
action,  recover  the  amount  which  will  compensate 
him  for  all  the  detriment  proximately  caused  bv  the 
breach.     The  law  casts  upon  an  officer  the  duty  or 


§§289,290       SHERIFFS  AND  CONSTABLES.  160 

obligation  of  paying  to  a  mortgagee  the  amount  of 
the  debt  due  the  mortgagee  before  he,  the  officer, 
may  take  the  property,  and  therefore  if  he  seizes 
such  property  without  paying,  tendering  or  de- 
positing the  amount  due,  the  detriment  proximately 
caused  by  such  seizure  is  not  the  value  of  the  prop- 
erty seized,  but  the  amount  of  the  mortgage  debt. 
(Jf'ood  V.  Franks,  56  Cal.  217.) 

§  289.  Creditor  to  advance  payments.  The  of- 
ficer is  not  bound  to  make  the  seizure  unless  the  at- 
taching creditor  furnish  him  with  the  requisite  funds 
to  make  the  payment.  A  failure  to  furnish  the  funds 
would  be  a  good  defense  by  the  officer  in  a  suit 
against  him  by  the  attaching  creditor.  If,  however, 
the  officer,  waiving  his  right  to  be  protected,  seizes 
the  property  without  payment,  tender,  or  deposit,  he 
assumes  to  make  good  to  the  mortgagee  the  detriment 
caused  by  the  seizure,  and  the  mortgagee  is  not  left 
to  his  action  of  trover  or  replevin.  ( JJ'ood  v.  Franks, 
56  Cal.  217.) 

§  290.  Growing  crops  mortgaged — Continuance 
of  lien.  "The  lien  of  a  mortgage  on  a  growing  crop 
continues  on  the  crop  after  severance,  whether  re- 
maining in  its  original  state  or  converted  into  another 
product,  so  long  as  the  same  remains  on  the  land  of 
the  mortgagor."     (California.    Civ.  Code,  sec.  2gj2.) 

In  Nevada  the  lien  of  a  mortgage  upon  a  growing 
crop  continues  until  after  the  crop  is  harvested  and 
threshed  or  baled  or  otherwise  prepared  for  market 
and  delivered  to  the  mortgagee  or  his  order.  {Ne- 
vada.   Gen.  Stats.  1885,  sec.  2635.) 


l6l  PERSONAL   PROPERTY.  §  29 1 

§  291.    Farming  on  shares  —  Attachable  interest. 

Where  two  persons  who  are  tenants  in  common,  the 
one  farming  the  land  of  the  other  under  an  agree- 
ment by  which  the  former  is  to  give  the  owner  of  the 
land  a  part  of  the  crop  raised  for  his  own  use,  a  con- 
tract may  be  entered  into  between  them,  by  which 
the  one  who  performs  the  work  becomes  divested  of 
an  attachable  interest  until  the  conditions  of  the  con- 
tract have  been  complied  with.  In  the  case  of 
Howell  V.  Foster,  65  Cal.  169,  3  Pac.  647,  the  court 
say  :— 

"There  is  no  doubt  that  where  one  man  farms  land 
of  another  under  an  agreement  by  which  he  is  to 
give  the  owner  a  part  of  the  crop  raised  for  its  use,  he 
and  the  owner,  in  the  absence  of  a  stipulation  pro- 
viding otherwise,  become  tenants  in  common  of  the 
crops  raised.  But  it  is  just  as  clear  that  the  agree- 
ment between  the  parties  may  be  so  framed  as  to 
secure  to  the  owner  of  the  land  the  ownership  of  the 
product  until  the  performance  of  a  certain  stated  con- 
dition. {IFentivorth  v.  Miller,  53  Cal.  9;  Andrew 
V.  Neivcomb,  32  A^.  Y.  419 ;  Lewis  v.  Lyman,  22  Pick. 
437;  Ponder  v.  Rhea,  32  Ark.  435;  Smith  v.  Atkins, 
18  Ft.  461.)  In  the  present  case  the  parties  ex- 
pressly agreed  that  all  of  the  grain  raised  on  the  land 
by  Mayfield  should  be  delivered  to  the  plaintiff  and 
remain  his  property,  and  in  no  way  subject  to  the 
disposal  of  Mayfield  until  all  of  such  advances  as  the 
plaintiff  may  have  made  him  had  been  satisfied,  and 
he  had  thereupon  received  from  the  plaintifif  his 
share  of  the  grain,  which  plaintifif  bound  himself  to 
deliver.  Until  all  this  happened  all  of  the  grain,  by 
the  express  contract  of  the  parties,  was  to  be  and 
remain  the  property  of  the  plaintifif,  and  in  no  way 


§§  292,  293       SHERIFFS  AND   CONSTABLES.  1 62 

subject  to  the  disposal  of  Mayfield.  That  it  was  com- 
petent for  the  parties  so  to  provide  has  already  been 
shown,  and  having  so  provided,  it  results  that  May- 
field  had  no  attachable  interest  in  the  grain  at  the 
time  of  the  levy  of  the  writs  in  question.  'It  is  a 
fundamental  principle,'  says  Drake  on  Attachment 
(sec.  245),  'that  an  attaching  creditor  can  acquire  no 
greater  right  in  attached  property  than  the  defend- 
ant had  at  the  time  of  the  attachment.  If,  therefore, 
the  property  be  in  such  a  situation  that  the  defendant 
has  lost  his  power  over  it,  or  has  not  yet  acquired  such 
interest  in  or  power  over  it  as  to  permit  him  to  dis- 
pose of  it  adversely  to  others,  it  cannot  be  attached 
for  his  debt.'  See,  also,  authorities  cited  in  support 
of  the  text,  and  Tuohy  v.  Wingfield,  52  Cal.  319." 

t 

§  292.    Attachment  of  crop  after  severance.     An 

atachment  upon  a  crop  after  severance  is  levied  by 

taking  the  property  into  the  possession  of  the  officer; 

but  if  the  crop  is  still  subject  to  the  lien  of  a  valid 

crop  mortgage,  the  provision  requiring  payment  or 

tender  of   the  mortgage   debt  to  the  mortgagee   is 

applicable.       (California.     Civ.    Code,    sees.    2955, 

2969.) 

§  293.  Attachment  of  pledged  property.  Under 
the  California  Code  provisions  (see  sees.  230,  ante, 
294  post),  it  is  held  that  while  the  interest  of  a 
pledgor  in  the  property  pledged  is  subject  to  attach- 
ment and  may  be  reached  in  the  hands  of  the  pledgee, 
yet  this  can  only  be  done  by  serving  and  enforcing 
a  garnishment  on  the  pledgee,  and  not  by  a  seizure 
of  the  pledge.  (Treadu^ell  v.  Davis,  34  Cal.  601, 
94  Am.  Dec.  770.)     Property  pledged  is  thus  held  to 


163  PERSONAL   PROPERTY.  §§294,295 

be  property  not  capable  of  manual  delivery.  It  will 
be  noticed,  however,  that  under  the  present  provision 
the  persons  garnished  and  also  the  defendant  may 
be  examined  under  oath  pending  the  attachment,  and 
"the  court  or  judge  may,  after  such  examination,  or- 
der personal  property  capable  of  manual  delivery  to 
be  delivered  to  the  sherifif  on  such  terms  as  may  be 
just,  having  reference  to  any  liens  thereon  or  claims 
against  the  same."  (California.  Code  Civ.  Proc, 
sec.  545.) 

§  294.  Pledge  of  goods — Rights  of  pledgee.  Un- 
der the  California  practice  [Code  Civ.  Proc,  sees. 
542,  544,  545,  688),  while  the  interest  of  the  pledgo: 
of  property  is  subject  to  execution,  yet  this  cannot  be 
done  by  seizure  of  the  pledge,  but  only  by  enforcing 
a  garnishment  on  the  pledgee.  (Treadu-ell  v.  Davis, 
34  Cal.  601,  94  A7n.  Dec.  770.) 

When  pledged  property  is  allowed  to  go  back  into 
the  possession  of  the  pledgor,  it  is  subject  to  attach- 
ment by  his  creditors.  [Salinas  City  Bank  v.  Graves, 
79  Cal.  192,  21  Pac.  732.) 

Personal  property  in  the  hands  of  a  bailee  may  be 
attached,  all  rights  of  the  bailee  being,  however, 
preserved.  (Humphreys  v.  Hopkins,  81  Cal.  551, 
15  /hn.  St.  Rep.  76,  22  Pac.  892,  6  L.  R.  A.  792. 
See,  also,  sec.  293,  ante.) 

§  295.  Prior  liens  must  be  satisfied.  An  officer 
cannot  take  property  belonging  to  the  defendant  in 
the  writ  from  the  possession  of  a  third  party  who  has 
a  lien  upon  the  property  wn'thout  first  satisfying  the 
claim  of  the  lien.  This  principle  applies  to  all  valid 
subsisting  liens  dependent  upon  possession,  whether 


§  296  SHERIFFS    AND   CONSTABLES.  1 64 

such  liens  originate  in  the  common  law  or  are  statu- 
tory. When  the  officer  finds,  therefore,  that  the  prop- 
erty which  he  is  instructed  to  attach  is  suhject  to 
any  such  lien  for  repairs,  storage,  feed  and  pasturage, 
board  and  lodging,  or  the  like,  he  should  notify  the 
plaintifif  in  attachment  and  decline  to  seize  the  prop- 
erty unless  money  is  advanced  sufficient  to  release 
the  lien. 

§  296.  Liens  upon  personal  property,  (a)  For  re- 
pairs.— "A  person  who  makes,  alters  or  repairs  any 
article  of  personal  property,  at  the  request  of  the 
owner  or  legal  possessor  of  the  property,  has  a  lien 
on  the  same  for  his  reasonable  charges  for  work  done 
and  materials  furnished,  and  may  retain  possession 
of  the  same  until  the  charges  are  paid." 

(b)  For  safe  keeping,  etc. — "Every  person  who, 
while  lawfully  in  possession  of  an  article  of  personal 
property,  renders  any  service  to  the  owner  thereof  by 
labor  or  skill  employed  for  the  protection,  improve- 
ment, safe  keeping  or  carriage  thereof,  has  a  special 
lien  thereon,  dependent  on  possession  for  the  compen- 
sation, if  any,  which  is  due  to  him  from  the  owner 
for  such  service;  and  livery,  or  boarding,  or  feed- 
stable  proprietors  and  persons  pasturing  horses  or 
stock  have  liens  dependent  on  possession  for  their 
compensation  in  caring  for,  boarding  or  pasturing 
such  horses  or  stock." 

(c)  For  purchase  price. — "One  who  sells  personal 
property  has  a  special  lien  thereon,  dependent  on 
possession,  for  its  price,  if  it  is  in  his  possession  when 
the  price  becomes  payable,  and  may  enforce  his  lien 
in  like  manner  as  if  the  property  was  pledged  to  him 
for  the  price." 


165  PERSONAL  PROPERTY.  §  297 

(d)  Factor's  lien. — "A  factor  has  a  general  lien, 
dependent  on  possession,  for  all  that  is  due  to  him  as 
such,  upon  all  articles  of  commercial  value  that  are 
intrusted  to  him  by  the  same  principal." 

{e)  Banker's  lien. — "A  banker  has  a  general  lien, 
dependent  on  possession,  upon  all  property  in  his 
hands  belonging  to  a  customer,  for  the  balance  due 
to  him  from  such  customer  in  the  course  of  the  busi- 
ness." 

(/)  Ship})iaster's  lien. — "The  master  of  a  ship  has 
a  general  lien,  independent  of  possession,  upon  the 
ship  and  freightage,  for  advances  necessarily  made 
or  liabilities  necessarily  incurred  by  him  for  the  bene- 
fit of  the  ship,  but  has  no  lien  for  his  wages." 

(g)  Seaman's  lien. — "The  mate  and  seaman  of  a 
ship  have  a  general  lien,  independent  of  possession, 
upon  the  ship  and  freightage,  for  their  wages,  which 
is  superior  to  every  other  lien." 

{h}  Officer's  lien. — "An  officer  who  levies  an  at- 
tachment or  execution  upon  personal  property  ac- 
quires a  special  lien,  dependent  on  possession,  upon 
such  property,  which  authorizes  him  to  hold  it  until 
the  process  is  discharged  or  satisfied,  or  a  judicial 
sale  of  the  property  is  had."  ( California.  Civ.  Code, 
sees.  3049-3057-) 

§  297.  Lien  for  cutting  timber,  etc.  Under  the 
California  statute  a  person  who  cuts  timber  and 
manufactures  it  into  ties  under  employment  of  the 
owner  of  the  land,  and  who  piles  the  same  and  re- 
mains in  possession,  has  a  lien  thereon  for  the  sum 
due  him  thereon,  and  he  may  retain  possession,  as 
against  an  officer  with  execution  or  attachment 
against  the  owner  of  the  land,  until  his  charges  are 


§§298,299       SHERIFFS  AND  CONSTABLES.  166 

paid.     {Douglass  v.  McFarland,  92  Cal.  656,  28  Fac. 

687.) 

§  298.  Waiver  of  lien.  When  a  person  who  has 
goods  in  his  possession  states  to  one  who  is  about  to 
take  possession  of  the  same  by  legal  process  that  he 
has  no  charges  on  the  goods,  this  is  a  waiver  of  his  lien 
for  charges,  if  any  he  had.  {Blackman  v.  Pierce, 
23  Cal.  509.) 

§  299.  Sale  before  judgment  —  Perishable  prop- 
erty. Statutory  provision  is  made  for  the  sale  of 
attached  property  before  judgment  in  cases  where 
the  property  is  perishable,  or  its  keeping  would  be 
attended  with  great  expense,  or  the  interest  of  the 
parties  would  be  subserved  by  such  sale. 

In  California,  "if  any  of  the  property  attached  be 
perishable,  the  sheriff  must  sell  the  same  in  the  man- 
ner in  which  such  property  is  sold  on  execution.  The 
proceeds,  and  other  property  attached  by  him,  must 
be  retained  by  him  to  answer  any  judgment  that  may 
be  recovered  in  the  action,  unless  sooner  subjected 
to  execution  upon  another  judgment  recovered  pre- 
vious to  the  issuing  of  the  attachment."  (California. 
Code  Civ.  Proc,  sec.  547.)  Notices  of  the  time  and 
place  of  sale  should  be  posted  in  three  public  places 
of  the  township  or  city  (as  the  case  may  be)  where 
the  sale  is  to  take  place  for  such  time  as  may  be  rea- 
sonable, considering  the  character  and  condition  of 
the  property. 

"Whenever  property  has  been  taken  by  an  officer 
under  a  writ  of  attachment,  and  it  is  made  to  appear 
satisfactorily  to  the  court,  or  a  judge  thereof,  that 
the  interest  of  the  parties  to  the  action  will  be  sub- 


167  PERSONAL  PROPERTY.  §  299 

served  by  a  sale  thereof,  the  court  or  judge  may  order 
such  property  to  be  sold  in  the  same  manner  as  prop- 
erty is  sold  under  an  execution,  and  the  proceeds  to 
be  deposited  in  the  court,  to  abide  the  judgment  in 
the    action."      (California.      Code   Civ.   Proc,  sec. 

548.) 

All  sales  of  property  under  execution  must  be  made 
at  auction  to  the  highest  bidder,  between  the  hours 
of  nine  in  the  morning  and  five  in  the  afternoon. 
Sales  by  order  of  the  court  must  be  made  by  posting 
w^ritten  notice  in  three  public  places  in  the  township 
or  city  where  the  sale  is  to  take  place,  for  not  less  than 
five  nor  more  than  ten  days,  except  where  the  time  of 
sale  is  fixed  in  the  order  of  the  court.  (California. 
Code  Civ.  Proc,  sees.  692,  694.) 

An  officer  selling  without  giving  the  statutory  no- 
tice forfeits  five  hundred  dollars  to  the  aggrieved 
party,  in  addition  to  his  actual  damages.  (Califor- 
nia.    Code  Civ.  Proc.,  sec.  693.) 


CHAPTER  XI. 

GARNISHMENT. 

§  300.  Garnishment — Nature  of. 

§  301.  Inventory  of  property — Request  to  garnishee. 

§  302.  Penalty  for  failure  to  answer. 

§  303.  Examination  of  defendant  limited. 

§  304.  Property  in  custody  of  the  law. 

§  305.  Collection  from  garnishee. 

§  306.  Distinction  between  debts  and  credits. 

§  307.  Garnishment  of  corporations. 

§  308.  Garnishment — Offset  allowable. 

§  309.  Garnishment  of  estate  funds. 

§  310.  Stocks  attachable  by  garnishment. 

§311.  Mortgage  attachable  by  garnishment. 

§  312.  Stocks  not  transferred  on  books. 

§  313.  When  garnishment  is  not  a  lien. 

§  314.  Attachable  interest  of  lessee  in  leased  property. 

§  315.  Garnishment  of  exempt  wages  an  abuse  of  process. 

§  316.  What  is  not  a  good  service  of  garnishment. 

§  317.  Garnishment  of  growing  crops. 

§  318.  Owner  of  safe-deposit  vault  is  subject  to  garnishment. 

§  319.  Garnishment  of  common  carrier. 

§  320.  Garnishment  of  warehouseman. 

§  321.  Garnishing  annuity. 

§  322.  Garnishment  of  pledged  property. 

§300.  Garnishment —Nature  of.  The  attachment 
of  debts,  credits,  and  other  personal  property  not 
capable  of  manual  delivery  by  service  of  notice  and 
copy  of  the  writ,  is  what  is  generally  termed  garnish- 
ment. Upon  serving  the  same  the  officer  must  request 
the  person  to  whom  it  is  delivered  to  make  a  state- 
ment in  response  to  the  garnishment.     It  is  a  custom 


169  GARNISHMENT.  §§  30I-303 

with  officers  to  deliver  with  the  notice  of  garnishment 
a  printed  blank  for  an  answer  or  statement.  The 
service  of  garnishment  should  be  promptly  per- 
formed, the  nature  of  the  kind  of  personal  property 
thus  attachable  being  easily  and  quickly  transferable. 
When  served  upon  a  corporation,  the  notice  should 
be  directed  to  the  corporation  by  its  full  name. 

§301.  Inventory  of  property  —  Request  to  gar- 
nishee. "The  sheriff  must  make  a  full  inventory 
of  the  property  attached  and  return  the  same  with 
the  writ.  To  enable  him  to  make  such  return  as  to 
debts  and  credits  attached,  he  must  request,  at  the 
time  of  service,  the  party  owing  the  debt  or  having 
the  credit  to  give  him  a  memorandum,  stating  the 
amount  and  description  of  each,  and  if  such  mem- 
orandum be  refused,  he  must  return  the  fact  of  re- 
fusal with  the  writ."  {California.  Code  Civ.  Proc, 
sec.  546.) 

§  302.  Penalty  for  failure  to  answer.  In  serving 
a  garnishment,  where  the  person  served  refuses  to 
give  the  officer  the  required  statement  or  memoran- 
dum of  the  debt  or  of  his  having  the  credit,  it  is 
proper  to  inform  him  of  the  provisions  of  law,  pro- 
viding that  he  may  be  required  to  pay  the  costs  of  any 
proceeding  taken  for  the  purpose  of  obtaining  infor- 
mation respecting  the  amounts  and  description  of 
such  debt  or  credit. 

§  1,01,.  Examination  of  defendant  limited.  Under 
the  California  provision  for  examination  of  the  per- 
son garnished  (Code  Civ.  Proc,  sec.  545),  which 
provides  that  "the  defendant  may  also  be  required 


§§  304-30^       SHERIFFS  AND  CONSTABLES.  170 

to  attend,  for  the  purpose  of  giving  information  re- 
specting his  property,"  it  is  held  that  the  defendant 
cannot  be  compelled  to  submit  to  an  examination  as  to 
the  credits  or  other  personal  property  belonging  to 
the  defendant,  or  owing  any  debts  to  the  defendant  at 
the  time  of  service  upon  them  of  a  copy  of  the  writ 
and  notice,  as  provided  in  the  last  two  sections,  shall 
be,  unless  such  property  be  delivered  up  or  trans- 
ferred, or  such  debts  be  paid  to  the  sheriff,  liable  to 
the  plaintiff  for  the  amount  of  such  credits,  property, 
or  debts,  until  the  attachment  be  discharged,  or  any 
judgment  recovered  by  him  be  satisfied."  {Califor- 
nia.    Code  Civ.  Proc,  sec.  544.) 

A  garnishee  can  only  be  required  to  answer  as  to 
his  liability  to  the  debtor  defendant  at  the  time  of 
the  service  of  the  garnishment.  (N orris  v.  Burgoyne, 
4  Cal.  409.) 

§  304.  Property  in  custody  of  the  law.  Money 
in  the  hands  of  the  sheriff,  collected  on  execution, 
is  not  the  subject  of  garnishment,  unless  by  express 
authority  of  law.     {See  sec.  218,  ante.) 

§  305.  Collection  from  garnishee.  Debts  and 
credits  due  to  a  defendant,  when  attached,  may  be 
collected  by  the  sheriff,  if  the  same  can  be  done  with- 
out suit;  and  the  sheriff's  receipt  is  a  sufficient  dis- 
charge for  the  amount  paid.  {California.  Code 
Civ.  Proc,  sec.  547.)  When  collected,  they  must  be 
held  to  answer  the  judgment. 

§  306.    Distinction  between  debts  and  credits.    In 

the  statute  prescribing  how  ''debts  and  credits"  may 
be  attached,  a  distincton  is  made  between  them,  and 


171  GARNISHMENT.  §§  307,  308 

a  return  showing  levy  upon  one  constitutes  no  lien 
upon  the  other.  A  debt  is  money  owing  by  the  gar- 
nishee to  the  defendant,  which  may  be  paid  over  to 
the  sheriff;  while  credits  are  something  belonging 
to  the  defendant  but  in  the  possession  of  the  garnishee, 
such  as  promissory  notes  which  may  be  delivered  up 
or  transferred  to  the  sheriff.  {Gow  v.  Marshall,  90 
Cal.  565,  27  Pac.  422.) 

§  307.  Garnishnient  of  corporation.  To  render 
the  process  of  attachment  effectual  against  a  corpora- 
tion as  garnishee,  the  writ  and  notice  must  be  served 
on  the  president  or  other  head  of  the  same,  or  the 
secretarv,  cashier,  or  other  managing  agent  thereof. 
In  the  case  of  a  banking  corporation,  service  of  proc- 
ess on  the,  teller,  whose  only  duty  is  to  receive  and 
pay  out  all  moneys  which  come  into  and  go  out  of 
the  bank,  is  not  sufficient  to  bind  the  corporation. 
{Kennedy  v.  Hibernia  Savings  and  Loan  Society, 
38  Cal.  151.) 

A  savings  bank  cannot  avoid  its  liability  to  pay 
over  the  money  of  its  depositor  on  a  garnishment  at 
the  suit  of  depositor's  creditor,  on  the  ground  that  its 
by-laws,  assented  to  by  the  depositor,  make  his  pass- 
book, in  which  his  account  is  kept,  transferable  to 
order  {Witte  v.  Vincenot,  43  Cal.  325)  ;  for  such 
pass-book  is  not  a  negotiable  instrument  in  a  com- 
mercial sense,  nor  can  the  agreement  of  the  parties 
make  it  so. 

§  308.  Garnishment — Offset  allowable.  Where  a 
railroad  company  is  served  with  garnishment  for  the 
purpose  of  attaching  wages  of  an  employee,  and  the 
company  is  liable  for  the  board  and  other  debts  con- 


§§309-312       SHERIFFS   AND   CONSTABLES.  172 

tracted  by  the  employee  in  an  amount  equal  to  the 
wages  due,  the  garnishment  is  inefifectuai.  {In  re 
Union  Pacific  Railway  Company  v.  Gibson,  15  Colo. 
299,  25  Pac.  300.) 

§  309.  Garnishment  of  estate  funds.  Money  in 
the  hands  of  an  administrator  may  be  garnished  as 
the  property  of  the  distributee  after  decree  of  dis- 
tribution has  been  made,  but  not  before.  [Estate  of 
Nerac,  35  Cal.  392,  95  Am.  Dec.  1 1 1.) 

§310.    Stocks  attachable  by  garnishment.     Stocks 

or  shares  which  the  defendant  may  have  in  any  cor- 
poration or  company,  together  with  the  interest  and 
profit  thereon,  may  be  attached,  and  if  judgment 
be  recovered,  be  sold  to  satisfy  the  judgment  and  exe- 
cution. In  California  "stocks  or  shares,  or  interest 
in  stocks  or  shares,  of  any  corporation  or  company, 
must  be  attached  by  leaving  with  the  president  or 
other  head  of  the  same,  or  the  secretary,  cashier,  or 
other  managing  agent  thereof,  a  copy  of  the  writ, 
and  a  notice  stating  that  the  stock  or  interest  of  the 
defendant  is  attached,  in  pursuance  of  such  writ." 
[California.    Code  Civ.  Proc,  sec.  542.) 

§311.    Mortgage   is   attachable  by  garnishment. 

Debts  secured  by  mortgage,  like  other  debts,  may  be 
attached  by  garnishment,  but  in  no  other  way.  and 
their  payment  may  be  enforced  under  the  provisions 
of  the  code  relating  to  proceedings  supplementary  to 
execution.  [McGurren  v.  Garrity,  68  Cal.  566,  9 
Pac.  839.) 

§312.     Stock    not    transferred    on    books.      No 

transfer  of  stock  issued  by  a  corporation   is   good 


1/3  GARNISHMENT.  §313 

against  third  parties,  under  the  California  code  pro- 
visions, unless  the  transfer  be  made  upon  the  books 
of  the  corporation  ( Civ.  Code,  sec.  324) .  Therefore, 
although  such  shares  be  sold  and  delivered,  they  may 
still  be  subjected  to  attachment  and  sale  in  an  action 
against  the  vendor,  if  no  transfer  has  been  made  on 
the  corporation  books. 

Where  shares  of  stock  in  a  corporation  have  been 
regularlv  transferred  as  security  for  a  loan,  the  mort- 
gagee is  the  only  proper  garnishee  in  a  suit  against 
the  mortgagor,  and  attachment  on  his  interest  in  the 
corporation.  In  such  a  case  the  corporation  is  no 
longer  privy  to  the  interest  of  the  mortgagor,  which 
is  a  mere  equity  in  the  hands  of  the  mortgagee. 
(EdiL-ards  v.  Beugnot,  7  Cal.  162.) 

§  313.  When  garnishment  is  not  a  Hen.  Service 
of  a  copy  of  the  writ  and  notice  of  garnishment  upon 
a  third  party  constitutes  no  lien  on  property  of  the 
defendant  in  the  hands  of  a  third  party  capable  of 
manual  delivery.  The  California  code  {Code  Civ. 
Proc,  sec.  542;  sec.  230,  ante)  provides  one  distinct 
method  of  levying  upon  personal  property  capable 
of  manual  delivery,  and  another  equally  distinct 
method  of  levying  upon  personal  property  not  capa- 
ble of  manual  delivery.  That  there  are  different 
wavs  pointed  out  to  the  officer  by  the  law,  in  one  or 
the  other  of  which  he  must  act,  according  to  the 
nature  of  the  property  he  is  about  to  seize,  should 
not  be  lost  sight  of.  The  writ  aflfects  property  only 
from  the  time  of  a  lawful  levy  in  accordance  with 
the  statute.  {Johnson  v.  Gorham.  6  Cal.  195,  65  Am. 
Dec.  501.) 


§§3^^315       SHERIFFS  AND  CONSTABLES.  174 

§  3 1 4.  Attachable  interest  of  lessee  in  leased 
property.  A  contract  by  which  A  lets  B  have  a  flock 
of  sheep  which  he  owns,  and  of  which  he  is  to  retain 
the  ownership,  to  keep  for  three  years,  and  by  which 
B  is  to  deliver  to  A  the  wool  sheared  from  the  sheep, 
and  A  is  to  sell  it  and  pay  B  one  half  the  proceeds, 
and  by  which  B  is  to  deliver  to  A  at  the  end  of  the 
term  the  sheep,  and  A  is  then  to  divide  with  B  the 
increase,  giving  B  one  half  the  increase  as  compensa- 
tion for  his  services,  does  not  give  B  such  an  interest 
in  the  sheep  or  increase  as  will  support  a  seizure  of 
them  under  an  attachment  against  the  property  of  B. 
The  interest  of  B  in  the  sheep  must  be  reached  by  his 
creditors  under  a  different  proceeding.  (Tiiohy  v. 
JFingfield,  52  Cal.  319.)  The  proper  procedure 
would  have  been  by  garnishment  on  the  owner  of 
the  sheep. 

§  315.    Garnishment  of  exempt  wages  an  abuse 

of  process.  It  is  declared  in  Nix  v.  Goodhill,  95 
Iowa,  282,  58  Am.  St.  Rep.  434,  63  N.  W.  701,  and 
by  numerous  other  authorities,  that  it  is  a  malicious 
abuse  of  legal  process  for  a  creditor  to  direct  a  sheriff 
to  serve  an  execution  by  garnishment  for  a  debt  due 
for  personal  earnings  exempt  from  execution.  The 
case  above  cited  was  an  action  for  malicious  garnish- 
ment of  wages  exempt  from  execution,  and  is  thus 
reported:  "The  plaintiff,  Nix,  was  a  judgment  debtor 
of  the  defendant,  Goodhill.  The  plaintiff  was  an 
employee  of  the  Illinois  Central  Railway  Company, 
and  the  head  of  a  family.  On  January  21,  1894,  there 
was  due  him  from  the  company  twenty-five  dollars, 
his  wages  for  the  forty  days  next  preceding.  The 
company  paid  its  employees  about  the  25th  of  each 


175  GARNISHMENT.  §315 

month.  Such  wages,  being  his  personal  earnings, 
were  exempt  from  execution.  Goodhill  took  out  exe- 
cution on  his  judgment,  garnished  the  company,  and 
on  the  day  that  the  garnishment  was  returnable  the 
proceeding  was  dismissed.  The  plaintiff  then  brought 
this  action,  alleging,  among  other  things,  that  the 
defendant,  well  knowing  that  said  personal  earnings 
were  exempt  from  execution,  and  would  be  paid  in 
a  few  days,  'knowingly,  willfully,  and  maliciously, 
and  with  the  purpose  and  intent  to  vex,  harass,  and 
injure  this  plaintifif,  and  to  deprive  him  of  said 
money,  and  the  use  thereof,  and  to  unlawfully  subject 
said  exempt  money  to  the  payment  of  debts,  and  to 
vex,  harass,  and  annoy  said  railroad  company,  so  as 
to  cause  said  railroad  company  to  discharge  plaintiff 
from  their  employ,  and  to  cause  and  compel  this 
plaintiff,  in  order  to  prevent  such  discharge,  to  use 
such  exempt  money,  against  his  will,  to  pay  the  judg- 
ment hereinafter  mentioned  and  described,'  caused 
and  directed  the  sheriff  to  garnish  such  wages. 

"The  only  question  in  the  case  arises  on  the  de- 
murrer to  the  petition.  Because  of  a  growing  prac- 
tice in  the  state,  the  question  is  an  important  one. 
By  observing  the  averments  of  the  petition  it  will 
be  seen  that  the  action  is  for  an  abuse  of  legal  process 
in  a  civil  suit,  the  defendant  having  directed  the 
sheriff  to  serve  the  execution  by  a  garnishment  of 
the  company  for  a  debt  due  for  personal  earnings 
exempt  from  execution.  It  is  a  rule  of  law  of  very 
general  recognition  that  an  action  will  lie  for  an 
abuse  of  such  process.  In  Cooley  on  Torts,  second 
edition,  page  220,  it  is  said:  Tf  process,  either  civil 
or  criminal,  is  willfully  made  use  of  for  a  purpose 
not  justified  by  the  law,  this  is  abuse  for  which  an 


§315  SHERIFFS   AND   CONSTABLES.  1 76 

action  will  lie.'  The  same  section  gives  some  illus- 
trations, as  'entering  up  a  judgment  and  suing  out 
execution  after  a  demand  is  satisfied,  suing  out  an 
attachment  for  an  amount  greatly  in  excess  of  the 
debt;  causing  an  arrest  for  more  than  is  due,  and 
levying  an  execution  for  an  excessive  amount.'  These 
are  but  some  of  the  abuses  for  which  an  action  will 
lie.  In  fact,  the  right  to  such  an  action  is  not  seriously 
to  be  questioned,  but  the  more  difficult  question  is, 
\¥hat  is  an  abuse  of  process,  so  as  to  render  it  action- 
able? We  should  be  careful  to  observe  a  distinction 
between  suing  out  of  a  wTit  and  the  improper  use  of 
the  writ  after  it  is  issued,  for  such  a  distinction  is  pre- 
served on  authority.  See  Bartlett  v.  Christhilf,  69 
Md.  219,  14  Atl.  518.  In  the  same  case  it  is  said: 
'There  are  instances  in  which  the  writ,  regularly  and 
properly  sued  out,  was  perverted,  abused,  and  made 
an  instrument  of  oppression.  Either  something  not 
warranted  by  its  terms  or  something  in  excess  of  that 
which  was  warranted  was  done  under  it.  It  would, 
indeed,  be  a  serious  reproach  to  the  law,  if  in  such 
cases  it  afforded  no  remedy  or  redress  to  the  injured 
party.  The  denial  of  a  remedy  in  such  cases,  upon 
the  ground  that  the  law  was  incapable  of  affording 
redress,  would  be  a  most  serious  reflection  upon  the 
remedial  efficacy  of  any  system  of  jurisprudence.  It 
would  proclaim  to  the  evil-disposed  an  unrestricted 
license  to  vex,  harass,  and  injure,  without  account- 
ability, even  though  their  victims  should  be  utterly 
ruined  in  their  circumstances.'  In  the  same  case 
it  is  said:  'A  malicious  abuse  of  legal  process  con- 
sists in  the  malicious  misuse  or  misapprehension  of 
that  process  to  accomplish  some  purpose  not  war- 
ranted or  commanded  by  the  writ.'     In  2  Addison 


177  GARNISHMENT.  §315 

on  Torts,  section  868,  it  is  said:    'Whoever  makes 
use  of  the  process  of  the  court  for  some  private  pur- 
pose of  his  own,  not  warranted  by  the  exigency  of 
the  writ  or  the  order  of  the  court,  is  answerable  to 
an  action  for  damages  for  an  abuse  of  the  process 
of  the  court.'    The  authorities  are  strong,  if  not  quite 
uniform,  that  the  unlawful  use  of  the  process  must 
be  malicious,  and  without  probable  cause;  the  rule 
being  akin,  in  that  respect,  to  actions  for  malicious 
prosecution.    In  fact,  the  two  actions  are  of  the  same 
general  character,  the  one  being  the  malicious  prose- 
cution of  a  suit,  and  the  other  the  malicious  use  of 
process  issued  in  aid  of  a  proceeding,  either  pending 
or  determined.     Keeping  in  view  that  such  an  action 
is  warranted  when  the  process  of  the  court  is  ma- 
liciously and  without  probable  cause  misused  or  mis- 
applied to  accomplish  some  purpose  not  warranted 
or  commanded  by  the  writ,  we  are  in  position  to  apply 
the  rule  to  the  facts  in  this  case.     The  property  in 
question   is  by  law  exempt  from  execution,  which 
means  that  it  is  not  to  be  seized  upon  execution  for 
the  debts  of  the  owner:  Code,  sec.  3072.    Hence  such 
a  levy  is  not  warranted  under  the  law.    The  execu- 
tion, if  against  the  property  of  the  judgment  debtor, 
requires  the  sheriff  'to  satisfy  the  judgment  and  in- 
terest out  of  property  of  the  debtor  subject  to  execu- 
tion:    Code,  sec.  3033.     It  is  thus  seen  that  nothing 
in  the  law  nor  on  the  face  of  the  process  warrants 
the  seizure  of  exempt  property.     But  where   it  is 
done,  more  than  the  unwarrantable  act  is  required. 
It  must  be  done  maliciously,  and  without  probable 
cause.    In  this  case  it  is  admitted  that  the  defendant 
directed  the  garnishment,  not  only  with  knowledge 
of  the  exemption,  but  maliciously,  and  with  a  pur- 
pose unlawfully  to  subject  the  exempt  money  to  the 


§315  SHERIFFS  AND  CONSTABLES.  178 

payment  of  his  debt,  by  vexing  and  harassing  the 
company,  and  to  compel  the  plaintiff,  in  order  to 
avoid  a  discharge,  to  use  the  exempt  money  against 
his  will  to  pay  the  debt.  The  facts  bring  the  case 
clearly  within  the  rule.  It  is  clearly  an  unlawful 
use  of  the  process,  and  as  clearly  an  abuse  of  it.  Ap- 
pellee seems  to  think  the  fact  important  that  the 
execution  was  valid,  and  that  what  was  done  'was  in 
excess  of  that  which  was  warranted.'  The  rule  of 
the  authorities  is,  that  such  an  action  lies  for  an  abuse 
of  process  legally  issued.  In  Bartlett  v.  Christhilf, 
69  Md.  219,  14  Atl.  518,  it  is  said,  in  speaking  of 
such  an  abuse  of  process :  'In  brief,  it  is  the  malicious 
perversion  of  a  regularly  issued  process  to  accomplish 
some  purpose  whereby  a  result  not  lawfully  nor  prop- 
erly attainable  under  it  is  secured.'  That  is  precisely 
what  was  done  under  the  process  in  this  case.  Ap- 
pellee makes  the  claim  that  the  exemption  was  the 
debtor's  personal  privilege,  which  might  be  claimed 
or  waived  at  his  option.  The  same  would  be  true  of 
the  levy  upon  the  property  of  a  third  person.  If  he 
did  not  assert  his  rights,  his  property  might  be  sold 
for  the  debts  of  another.  But  would  the  law  permit 
it  to  be  taken  with  the  purposes  and  motives  admitted 
in  this  case,  without  remedy  for  such  an  act?  We 
think  it  is  a  mistaken  view  that  the  exempt  property 
of  a  judgment  debtor  may  rightfully  be  taken  on  exe- 
cution, relying  on  the  exercise  of  a  personal  privi- 
lege to  retake  or  protect  it  as  exempt.  It  is  protected 
from  interference  in  such  manner  both  by  the  law 
and  the  face  of  the  writ,  which  commands  the  taking 
of  property  not  exempt  from  execution.  The  rule 
claimed  for  this  personal  privilege  would  permit  the 
judgment  creditor  to  enter  the  home,  and  take  there- 


179  GARNISHMENT.  §316 

from  provisions  and  household  goods,  exempt,  with 
the  purpose  to  vex  and  harass  the  debtor  into  the 
payment  of  a  debt  or  judgment.  Such  a  proceeding 
is  a  misuse  and  abuse  of  the  processes  of  the  court, 
and,  when  done  with  the  motives  indicated,  it  is 
actionable.  No  case  cited,  nor  that  we  have  dis- 
covered, is  against  such  a  rule.  The  demurrer  to 
the  petition  should  be  overruled." 

§  3 1 6.    What  is  not  a  good  service  of  garnishment. 

In  re  Kittrell  v.  Perry  Lumber  Co.,  107  Tenn.  148, 
64  S.  W.  48,  a  garnishment  proceeding  was  intended 
to  be  against  the  Creelman  Lumber  Company,  and 
to  have  that  company  answer  and  disclose  property 
of  the  Perry  Lumber  Company  in  its  hands  or  under 
its  control.  The  garnishment  notice  w^as  in  the  fol- 
lowing words: — 

"Mr.  Charles  M.  Gates,  agent  for  F.  E.  Creelman 
Lumber  Co.:  By  virtue  of  an  attachment  in  my 
hands  in  favor  of  J.  M.  Kittrell  and  Webb  and  Wall, 
against  the  estate  of  the  Perry  Lumber  Co.,  I  attach 
all  the  property,  choses  in  action,  and  effects  of  every 
kind  in  your  hands  belonging  to  the  said  Perry 
Lumber  Co.,  and  all  debts  you  or  your  firm  owe 
them,"  etc. 

"It  is  evident,"  said  the  court,  "that  this  notice 
is  not  to  the  Creelman  Lumber  Companv,  but  to 
Charles  M.  Gates.  The  designation  of  Mr.  Gates 
as  agent  for  the  Creelman  Lumber  Companv  is  a 
mere  descriptio  persotuB.  The  company  is  not 
obligated  by  this  notice  to  make  an  appearance  and 
answer." 

The  notice  should  have  read:  "To  the  F.  E.  Creel- 
man Lumber  Co.,  Charles  M.  Gates,  agent." 


§3l6  SHERIFFS   AND   CONSTABLES.  l8o 

In  garnishment  proceedings  against  a  bank,  where 
the  president  and  cashier  are  absent,  notice  and  a  copy 
of  the  order  of  attachment,  served  upon  the  book- 
keeper thereof  during  business  hours,  is  sufficient. 
[First  Nat.  Bank  of  Blue  Hill  v.  Turner.  30  Nch. 
80,  46  N.  IV.  Rep.  290.)  Section  935  of  the  Nebraska 
code  provides  that  in  garnishment  "the  copy  of  the 
order  and  the  notice  shall  be  served  upon  ...  if  a 
corporation,  they  shall  be  left  with  the  president  or 
other  head  of  the  same,  or  the  secretary,  cashier,  or 
managing  agent  thereof."  The  bookkeeper  of  the 
bank  was  the  managing  agent  thereof.  He  was  the 
only  person  that  the  officer  found  in  the  bank  upon 
whom  service  could  be  made;  and  service  upon  him 
during  business  hours,  at  the  place  of  doing  business, 
was  declared  by  the  court  to  be  sufficient.  In  the 
absence  of  the  officers  named  for  service,  the  book- 
keeper was  the  acting  managing  agent  of  the  corpora- 
tion. In  line  with  this  is  the  decision  of  the  supreme 
court  of  Minnesota  in  the  case  of  State  ex  rel.  Arnold 
V.  Justus,  84  Minn.  237,  87  N.  W.  770,  55.  L.  R.  A. 
325,  as  follows: — 

"Under  the  constitution  of  the  state  of  Illinois, 
in  case  of  disability  of  the  governor  the  lieutenant 
governor  shall  act  in  his  place,  and  upon  the  dis- 
ability of  the  lieutenant  governor  the  president  pro 
tern,  of  the  senate  shall  act  as  governor.  Where  the 
duties  of  the  chief  executive  of  that  state  are  supplied 
by  either  of  these  constitutional  substitutes,  it  is  not 
improper  to  designate  such  substitute  as  the  'acting 
governor,'  in  which  case  the  attestation  by  the  secre- 
tary of  state,  under  the  state  seal,  as  'by  the  gover- 
nor,' is  proper,  and  requires  full  faith  and  credit 
from  foreign  jurisdictions." 


l8l  GARNISHMENT.  §317 

§317.  Garnishment  of  growing  crops.  Subdi- 
vision 5  of  section  542  of  the  Code  of  Civil  Procedure 
provides  for  the  attachment  of  unripe  growing  crops. 
Since  the  decision  in  In  re  Raventas  v.  Green,  57  Cal. 
254,  the  above  subdivision  has  been  amended  by  the 
addition  of  the  following  words:  "except  in  the  case 
of  attachment  of  growing  crops,  a  copy  of  the  writ, 
together  with  a  description  of  the  property  attached, 
and  a  notice  that  it  is  attached,  shall  be  recorded 
the  same  as  in  the  attachment  of  real  property." 

In  the  case  of  Raventas  v.  Green,  57  Cal.  254,  it  is 
decided  that  an  attachment  upon  such  property  in 
the  possession  of  the  defendant  is  sufficiently  levied 
by  serving  upon  him  copies  of  the  writ  and  statutory 
notice;  and  if  the  sheriff  does  nothing  further  until 
the  crop  is  ripe, when  he  gathers  it,  there  is  no  aban- 
donment of  the  attachment.  In  that  case  the  court 
say : — 

"There  is  no  doubt  that  an  unripe  growing  crop 
of  grain  is  property.  It  is  property  subject  to  at- 
tachment {Code  Civ.  Proc,  sec.  541 ) ,  and  is  personal 
property  {Civ.  Code,  sec.  2955  ;  Davis  v.  McFarlane, 
37  Cal.  638,  99  Am.  Dec.  340.)  And  it  is  personal 
property  not  capable  of  manual  delivery  {Davis  v. 
McFarlane,  and  authorities  there  cited) .  Being  per- 
sonal property  not  capable  of  manual  delivery,  and 
being  subject  to  attachment,  how  is  it  to  be  attached? 
In  the  third  subdivision  of  section  542  of  the  Code  of 
Civil  Procedure,  it  is  provided  that  'personal  prop- 
erty capable  of  manual  delivery  must  be  attached  by 
taking  it  into  custody';  and  in  the  fifth  subdivision, 
that  'debts  and  credits,  and  other  personal  property 
not  capable  of  manual  delivery,  must  be  attached  by 
leaving  with  the  person  owing  such  debts,  or  having 


§3l8  SHERIFFS  AND   CONSTABLES.  182 

in  his  possession  or  under  his  control  such  credits  and 
other  personal  property,  or  with  his  agent,  a  copy 
of  the  writ  and  a  notice  that  the  debts  owing  by  him 
to  the  defendant,  or  the  credits  and  other  personal 
property  in  his  possession  or  under  his  control  be- 
longing to  the  defendant,  are  attached  in  pursuance 
of  such  writ.'  .  .  .  The  purpose  of  the  statute  was, 
as  its  language  indicates,  to  declare  the  manner  in 
which  property  subject  to  attachment  should  be  at- 
tached; and  with  respect  to  personal  property,  pro- 
vides that  such  property,  when  capable  of  manual 
delivery,  must  be  attached  by  the  officer  taking  it 
into  his  custody,  but  that  where  not  capable  of  manual 
delivery,  must  be  attached  by  leaving  with  the  person 
having  it  in  his  possession  or  under  his  control,  or 
with  his  agent,  a  copy  of  the  writ  and  a  notice  that 
it  is  attached  in  pursuance  of  such  writ.  Personal 
property  not  capable  of  manual  delivery,  which  is  in 
the  hands  of  the  defendant  to  the  attachment  suit,  is 
as  much  liable  to  attachment  as  if  in  the  hands  of  a 
third  person." 

§  318.  Owner  of  safe-deposit  vault  is  subject  to 
garnishment.  Under  a  statute  requiring  a  garnishee 
to  answer  as  to  any  personal  property  of  the  defend- 
ant "under  his  control"  a  bank  which  has  rented  a 
box  in  a  safety  deposit  vault  therein  to  the  defendant 
is  subject  to  garnishment,  where  the  boxes  in  the  vault 
can  be  opened  only  by  two  keys,  one  a  master  key  in 
the  possession  of  the  bank,  and  the  other  a  private 
key,  in  the  box-renter's  possession.  The  garnishee  in 
such  a  case  has  "control  of  the  contents  of  the  box, 
though  it  may  be  impossible  for  him  to  answer  spe- 
cifically as  to  the  contents  thereof,  and,  as  the  court 


183  GARNISHMENT.  §318 

may  inquire  into  the  contents  of  the  box  by  causing 
the  defendant  to  be  examined  as  a  witness,  the  gar- 
nishee should  retain  the  exclusive  control  thereof  un- 
til he  is  discharged  by  the  court."  (Troivhridge  v. 
Spinning,  23  Wash.  48,  62  Pac.  125,  83  Am.  St.  Rep. 
806,  54  L.i^.^.  204.) 

The  question  whether  property  contained  in  a  box 
in  the  safe  of  a  safe-deposit  company  is  subject  to 
garnishment  or  not  has  not,  so  far  as  we  are  aware, 
been  much  considered  or  finally  determined.  In  one 
case  it  was  held  to  be  proper  to  direct  the  sheriff  to 
open  a  box  and  make  an  actual  seizure  of  property 
in  the  custody  of  a  safe-deposit  company,  the  court 
saying:  "Neither  the  safe  nor  the  box  constituted 
any  portion  of  the  defendant's  dwelling,  and  they 
were  not  within  the  protection  which  the  law  affords 
to  that  against  an  officer  acting  under  civil  process. 
They  were  simply  places  of  deposit  and  safe-keeping 
for  the  defendant's  property,  which  the  sheriff  may 
enter  to  make  the  seizure  required  by  law  in  the  exe- 
cution of  the  process  in  his  hands.  If  that  were  not 
so,  there  would  be  nothing  to  prevent  a  failing  or 
insolvent  debtor  from  turning  all  his  property  into 
valuable  securities  or  other  articles  requiring  but 
little  space  for  their  custody,  and  then  placing  them 
in  the  hands  of  a  safe-deposit  company  for  preserva- 
tion and  defying  all  the  efforts  of  his  creditors  to 
satisfy  their  debts  by  resorting  to  them.  That  would 
afford  an  expedient  for  the  success  of  fraudulent  de- 
signs which  might  render  the  laws  of  the  state  for  the 
collection  of  debts  entirely  powerless.  No  such 
effect  could  be  given  a  deposit  of  that  nature  without 
at  once  defeating  the  object  apparently  designed  to  be 
secured  by  the  law  in  rendering  the  debtor's  property 


§§319-322       SHERIFFS  AND  CONSTABLES.  184 

liable  to  the  process  issued  in  favor  of  his  creditors 
in  actions  brought  to  recover  their  just  debts." 

§319.    Garnishment   of   common   carrier.      It   is 

held  in  Baldwin  v.  Great  Northern  Railway  Co., 
81  Minn.  247,  83  Am.  St.  Rep.  370,  83  N.  W.  986, 
51  L.  R.  A.  640,  that  property  in  the  hands  of  a  com- 
mon carrier  received  for  transit  to  a  place  outside 
this  state  is  not  subject  to  garnishmenv. 

In  Landa  v.  Hoick,  129  Mo.  663,  50  Am.  St.  Rep. 
459?  31  S.  W.  900,  held  that  property  in  the  hands 
of  a  common  carrier  awaiting  shipment  is  subject 
to  garnishment  at  any  time  before  its  transit  has  com- 
menced. And  see,  also,  Van  Camp  etc.  Co.  v. 
Plimpton,  174  Mass.  208,  75  Am.  St.  Rep.  296,  54 
N.  E.  538. 

§  320.  Garnishment  of  warehouseman.  A  gar- 
nishment of  a  warehouseman  having  personal  prop- 
erty of  the  defendant  in  his  possession  charges  such 
warehouseman  with  the  responsibility  of  retaining 
the  property  as  in  the  custody  of  the  law,  in  order 
that  it  may  be  applied  to  the  satisfaction  of  the  debt 
on  which  the  garnishment  was  placed.  {Cooley  v. 
Minnesota  etc.  Ry.  Co.,  53  Minn.  327,  39  Am.  St. 
Rep.  609,  55  A^  H\  141.) 

§321.  Garnishing  annuity.  An  obligation  for 
one  person  to  pay  another  a  certain  sum  of  money 
annually  for  life  is  subject  to  garnishment  by  the 
latter's  creditors.  (Keiser  v.  Shaiv,  104  Ky.  119, 
84  Am.  St.  Rep.  450,  46  S.  W.  524.) 

§  322.  Garnishment  of  pledged  property.  Un- 
der the  California  code  provisions  it  is  held  that 


185  GARNISHMENT.  §  322 

while  the  interest  of  a  pledgor  in  the  property 
pledged  is  subject  to  attachment  and  may  be  reached 
in  the  hands  of  the  pledgee,  yet  this  can  only  be  done 
by  serving  and  enforcing  a  garnishment  on  the 
pledgee,  and  not  by  a  seizure  of  the  pledge.  (Tread- 
well  V.  Davis,  34  Cal.  601,  94  Am.  Dec.  770.)  Prop- 
erty pledged  is  thus  held  to  be  property  not  capable 
of  manual  delivery.  It  will  be  noticed,  however,  that 
under  the  present  provision  the  persons  garnished 
and  also  the  defendant  may  be  examined  under  oath 
pending  the  attachment,  and  "the  court  or  judge  may, 
after  such  examination,  order  personal  property, 
capable  of  manual  delivery,  to  be  delivered  to  the 
sheriff  on  such  terms  as  may  be  just,  having  reference 
to  any  liens  thereon  or  claims  against  the  same." 
{California.     Code  Civ.  Proc,  sec.  545.) 


^323 
§324 
§325 
§326 

^3V 
§328 

§329 
§330 
§  331 


CHx^PTER  XII. 

ATTACHMENT  OF   REAL  PROPERTY 

Attachment  of  real  property. 

Service  on  occupant. 

Absence  of  occupant. 

Failure  to  find  record  owner. 

Posting  copy  on  real  estate. 

What  constitutes  a  complete  attachment. 

Lien  on  real  estate,  when  takes  effect. 

Sufficiency  of  the  return. 

How  attachment  may  be  released. 


§  323.  Attachment  of  real  property.  The  man- 
ner of  levying  the  writ  of  attachment  upon  real  prop- 
erty is  as  follows: — 

"i.  Real  property,  standing  upon  the  records  of 
the  county  in  the  name  of  the  defendant,  must  be  at- 
tached by  filing  with  the  recorder  of  the  county  a 
copy  of  the  writ,  together  with  a  description  of  the 
property  attached,  and  a  notice  that  it  is  attached, 
and  by  leaving  a  similar  copy  of  the  writ,  description, 
and  notice  with  an  occupant  of  the  property,  if  there 
is  one;  if  not,  then  by  posting  the  same  in  a  conspicu- 
ous place  on  the  property  attached. 

"2.  Real  property,  or  any  interest  therein,  belong- 
ing to  the  defendant  and  held  by  any  other  person, 
or  standing  on  the  records  of  the  county  in  the  name 
of  any  other  person,  must  be  attached  by  filing  with 
the  recorder  of  the  county  a  copy  of  the  writ,  to- 
gether with  a  description  of  the  property  and  a  notice 
that  such  real  property  and  any  interest  of  the  defend- 


187  ,  REAL   PROPERTY.  §§324,325 

ant  therein,  held  by  or  standing  in  the  name  of  such 
other  person  (naming  him),  are  attached,  and  by 
leaving  with  the  occupant,  if  any,  and  with  such  other 
person  or  his  agent,  if  known  and  within  the  county, 
or  at  the  residence  of  either,  if  within  the  county,  a 
copy  of  the  writ,  with  a  similar  description  and 
notice.  If  there  is  no  occupant  of  the  property,  a 
copy  of  the  writ,  together  with  such  description  and 
notice,  must  be  posted  in  a  conspicuous  place  upon 
the  property."  {California.  Code  Civ.  Proc,  sec. 
542.) 

§324.  Service  on  occupant.  Under  a  statute  re- 
quiring service  of  a  copy  of  the  writ  upon  the  occu- 
pant, if  any,  it  is  not  necessary  to  go  to  the  land  if 
an  occupant  can  be  served  with  a  copy  of  the  writ, 
description  and  notice  without  going  to  the  land. 
It  is  not  necessary  to  serve  the  defendant  with  a  copy 
of  the  writ,  description  and  notice  except  he  be  the 
occupant  of  the  land  attached.  A  person  may  be  an 
occupant  of  real  estate,  although  there  be  no  build- 
ings upon  it.  He  may  occupy  the  bare  land  for  the 
storage  of  hay,  or  any  other  commodity.  If  he  be 
an  occupant  in  any  capacity,  he  is  entitled  to  notice 
of  the  levy,  and  a  service  upon  him  will  be  a  service 
upon  an  occupant  within  the  law.  The  service  of  the 
writ,  description  and  notice  upon  an  occupant  (if 
there  is  one)  is  made  by  personally  delivering  to  and 
leaving  the  copy  with  the  occupant.  (See,  also,  sec. 
325,  P^^t-) 

§  325.  Absence  of  occupant.  When  the  statute 
requires  service  of  a  copy  of  the  writ  upon  the  "occu- 
pant of  the  property,  if  there  be  one,"  otherwise,  post- 


;§  326-328       SHERIFFS  AND  CONSTABLES. 


88 


ing  of  the  papers,  if  the  officer  finds  no  occupant 
"easily  discoverable"  or  "visibly  occupying  the  prop- 
erty" at  the  time  of  his  visit,  he  should  make  the  levy 
by  posting  without  delay,  although  there  be  on  the 
property  a  dwelling-house  apparently  tenanted.  (Da- 
vis V.  Baker,  72  Cal.  494,  14  Pac.  102.) 

§  326.  Failure  to  find  record  owner.  When  the 
person  who  is  not  the  defendant  and  in  whose  name 
the  property  stands  on  the  records  is  not  in  the  county 
and  has  no  agent  in  the  county,  and  neither  he  nor 
any  agent  of  his  has  a  residence  in  the  county,  and 
the  service  contemplated  in  the  statute  cannot  thus  be 
made,  the  attachment  will  not  for  that  reason  be  in- 
validated, but  such  facts  should  be  set  out  in  the 
return  made  by  the  officer  on  the  writ. 

§  327.  Posting  copy  on  real  estate.  If  there  is 
no  fence  or  building  upon  the  land  attached,  the 
posting,  when  required  by  the  statute,  may  be  done 
by  setting  a  post  or  stake  in  the  ground  and  attaching 
thereto  the  copy  of  the  writ,  description  and  notice. 

§  328.    What  constitutes  a  complete  attachment. 

To  complete  the  service  and  create  a  lien  all  the 
acts  required  by  law  must  be  performed.  Neither  act 
by  itself  will  amount  to  a  service  of  the  attachment 
and  create  a  lien  on  the  property.  The  performance 
of  all  these  acts  is  essential  to  create  a  lien,  and  the 
omission  of  either  act  is  fatal  to  the  creation  of  the 
lien.  (Wheaton  v.  Neville,  19  Cal.  44;  Main  v. 
Tappener,  43  Cal.  209.)  When  the  statute  requires 
service  upon  the  occupant  or  posting  upon  the  prem- 
ises, the  levy  is  incomplete  and  ineffectual  unless  such 


189  REAL   PROPERTY.  §329 

requirement  be  complied  with.  [Maskell  v.  Barker, 
99  Cal.  642,  34  Par.  340;  Watt  v.  Wright,  66  Cal. 
202.  t;  P<7r.  91.)  But,  in  addition  to  this,  the  requisite 
acts  should  be  performed  in  the  order  in  which  they 
are  named  in  the  code;  that  is  to  say,  under  the  Cali- 
fornia practice  the  filing  of  a  copy  with  the  recorder 
must  precede  the  service  on  an  occupant  or  the  post- 
ing on  the  premises. 

In  Wheaton  v.  Neville,  ante,  the  court  said  that 
after  the  return  of  the  writ  the  sheriff  has  no  authority 
to  take  any  proceedings  for  the  completion  of  the 
attachment  which  he  has  previously  omitted.  Its  effi- 
cacy, as  a  warrant  of  authority  to  him,  is  limited  to 
acts  performed  while  it  remains  in  his  possession. 

§  329.    Lien   on   real   estate,   when   takes   effect. 

The  lien  of  an  attaching  creditor  of  real  estate  takes 
effect  immediately  upon  the  levy  of  the  attachment, 
and  a  deposit  of  a  copy  of  the  writ,  together  \\\\h  a 
description  of  the  land  attached,  with  the  county  re- 
corder; that  is,  as  soon  as  all  the  statutory  require- 
ments have  been  complied  with.  {Ritfer  v.  Scannell, 
1 1  Cal.  239,  70  Am.  Dec.  JJ^.) 

Under  the  old  law  in  California  the  service  on  the 
occupant  or  posting  on  the  property  was  required  to 
be  done  before  filing  with  the  recorder.  The  prac- 
tice is  reversed  under  the  present  law. 

Such  lien  cannot  be  diverted  by  the  failure  of  the 
sheriff  to  make  a  proper  return  of  the  writ. 

Our  statute  prescribes  the  manner  in  which  real 
estate  may  be  attached,  but  contains  no  express  pro- 
vision requiring  that  all  the  acts  necessary  to  a  valid 
levy  shall  be  set  out  in  the  return ;  nor  can  such  a 
rule  be  sustained.     {See  sec.  330,  post.)     The  deposit 


§§330,331       SHERIFFS  AND  CONSTABLES.  190 

in  the  recorder's  office  of  a  copy  of  the  writ,  with  a 
description  of  the  property  attached,  is  sufficient  to 
operate  as  notice  of  the  lien  to  third  parties.  {Ritter 
V.  Scannell,  1 1  Cal.  239,  70  Am.  Dec.  775.) 

§  330.  Sufficiency  of  the  return.  If  the  return 
of  the  sheriff  certifies  generally  that  he  attached  cer- 
tain real  property,  and  further  specifies  certain  acts 
which  are  insufficient  to  make  a  valid  levy,  the  gen- 
eral return  of  service  is  sufficient  to  charge  a  subse- 
quent purchaser  with  notice  of  the  omitted  facts,  if 
the  service  was  in  fact  complete.  To  support  an 
execution  sale  the  omitted  facts  may  be  shown  by 
parol  evidence  of  the  officer,  which  evidence  must 
be  clear  and  satisfactory.  {Brusle  v.  Gates,  80  Cal. 
462,  22  Pac.  284.) 

When  the  statute  requires  that  papers  be  posted 
"in  a  conspicuous  place  on  the  premises,"  a  return 
showing  a  posting  "on  the  premises"  is  prima  facie 
sufficient  to  support  the  levy.  {Davis  v.  Baker,  72 
Cal.  494,  14  Pac.  102.) 

§  331.  How  attachment  may  be  released.  Until 
the  year  1876  there  was  no  method  prescribed  by 
statute  in  California  for  the  release  of  an  attachment 
upon  real  estate  on  the  records  of  the  county  in  which 
the  property  was  situated.  At  the  session  of  the 
legislature  in  that  year  a  clause  was  added  to  section 
559  of  the  Code  of  Civil  Procedure  providing  that 
"whenever  an  order  has  been  made  discharging  or 
releasing  an  attachment  on  real  property,  a  certified 
copy  of  such  order  may  be  filed  in  the  offices  of  the 
county  recorders  in  which  the  notices  of  attachment 
have  been  filed,  and  be  indexed  in  like  manner."    It 


191 


REAL   PROPERTY. 


§331 


then  became  quite  generally  the  custom  among  sher- 
iffs and  constables  to  release  attachments  upon  real 
property  by  filing  with  the  county  recorder  a  certified 
copy  (certified  by  the  ofiicer)  of  the  order  of  plain- 
tiff's attorney  to  release  the  attachment;  and  in  the 
case  of  Smith  v.  Robinson,  64  Cal.  387,  i  Pac.  353, 
the  supreme  court  held  that  a  plaintiff  without  order 
of  court  may  direct  the  sheriff  to  release  real  property 
attached.     (See,  also,  sec.  269,  ante.) 


C^t-a^yUt^ 


CHAPTER  XIIL 

EXECUTION — GENERALLY. 

§  332.  Property  and  rights  subject  to  execution. 

§  333-  Within  what  time  execution  may  issue. 

§  334.  Same  Hmit  in  foreclosure  cases. 

§  335.  Execution  after  time  Hmited — RecalL 

§  336.  Transcripts  from  justices'  courts. 

§  337.  Execution  after  death  of  a  party. 

§  338.  Execution  before  entry  of  judgment. 

§  339.  Receipt  of  writ. 

§  340.  Writ  cannot  be  received  on  Sunday. 

§  341.  What  the  writ  must  require. 

§  342.  Delay  in  service  of  writ  inexcusable. 

§  343.  Penalty  for  neglect  to  levy. 

§  344.  Void  and  voidable  writs. 

§  345.  Irregularities  in  writ  or  proceedings. 

§  346.  Execution — When  void. 

§  347.  When  voidable. 

§  348.  When  amendable. 

§  349.  Irregular  writ — Duty  of  officer. 

§  350.  Writ  not  open  to  collateral  attack. 

§  351.  When  sheriff  may  levy  on  real  property. 

§  352.  Judgment  set  aside  after  levy. 

§  353.  Staying  execution. 

§  354.  Sheriff  cannot  sell  when  stay  is  ordered. 

§  355.  Quashing  execution. 

§  356.  How  writ  is  executed. 

§  357.  Levy  of  execution  in  California. 

§  358.  Return  of  writ. 

§  359-  Necessity  of  prompt  return. 

§  360.  Proper  filing  of  return. 

§  361.  Return — Time  suspended  by  injunction. 

§  362.  Stay  of  proceedings  extends  time. 

§  363.  Return  in  foreclosure  cases. 

§  364.  Foreclosure  of  mortgages  and  other  liens. 


193  EXECUTION — GENERALLY.        §§  332-334 


§365 
§366 

§367 
§368 

§369 
§370 
§371 


Execution  against  a  corporation  for  fine. 
Justice's  court  executions. 
Power  of  justice  over  his  judgments. 
Enjoining  justice's  judgment. 
Execution  to  constable — Levy  by  sheriff. 
Setting  aside  a  justice's  court  execution. 
Stay  of  justice's  court  execution. 


§  332.    Property  and  rights  subject  to  execution. 

All  property  of  the  judgment  debtor,  not  expressly 
by  law  made  exempt  from  execution,  is  subject  to 
execution  and  forced  sale.  The  principle  is  laid 
down  in  the  California  Code  of  Civil  Procedure 
{sec.  688)  as  follows:  "All  goods,  chattels,  moneys 
and  other  property,  both  real  and  personal,  or  any 
interest  therein  of  the  judgment  debtor,  not  exempt 
by  law,  and  all  property  and  rights  of  property  seized 
and  held  under  attachment  in  the  action,  are  liable  to 
execution." 

§  333.    Within  what  time  execution  may  issue. 

Under  the  California  practice,  the  party  in  whose 
favor  judgment  is  given  may,  at  any  time  within 
five  years  after  the  entry  thereof,  have  a  writ  of 
execution  issued  for  its  enforcement.  This  applies 
to  superior  and  justices'  courts.  In  all  cases  other 
than  for  the  recovery  of  money,  in  the  superior  court, 
the  judgment  may  be  enforced  or  carried  into  execu- 
tion after  the  lapse  of  five  years  from  the  date  of  its 
entry,  by  leave  of  the  court,  upon  motion,  or  by  judg- 
ment for  that  purpose,  founded  upon  supplemental 
proceedings.     [Code  Civ.  Proc,  sees.  681,  685,  901.) 

§  334.    Same  limit  in  foreclosure  cases.    The  stat- 
ute limiting  the  time  for  issuing  execution  upon  a 


§§  335)  111       SHERIFFS  AND  CONSTABLES.  1 94 

judgment  to  five  years  after  its  entry  applies  to  judg- 
ments rendered  in  suits  to  foreclose  a  mortgage  or 
other  lien  equally  as  to  mere  personal  judgments. 
(Stout  V.  Macy,  22  Cal.  647;  Dorland  v.  Hanson,  81 
Cal.  202,  15  Am.  St.  Rep.  44,  22  Pac.  552.) 

§  335.    Execution  after  time  limited — Recall.     If 

an  order  be  made  granting  an  execution  after  the 
lapse  of  the  statutory  limit,  such  order  will  be  an- 
nulled on  certiorari.  (Cortes  v.  Superior  Court,  86 
Cal.  274,  21  Am.  St.  Rep.  37,  24  Pac.  ion.) 

When  an  execution  has  been  improperly  issued 
after  the  expiration  of  the  time  allowed  by  law  for 
its  issuance,  the  court  may  recall  the  same  and  order 
the  sheriff  to  refund  money  collected  thereon  by  him. 
(McMann  v.  Superior  Court,  74  Cal.  106,  15  Pac. 

448.) 

§  336.     Transcripts    from    justices*    courts.     The 

filing  and  docketing  of  a  transcript  of  a  judgment 
rendered  by  a  justice  of  the  peace  in  the  office  of  the 
clerk  of  the  county  does  not  empower  the  clerk  of 
the  court  in  which  it  is  filed  and  docketed  to  issue 
an  execution  on  the  same  after  five  years  have  elapsed 
from  the  date  of  its  rendition.  (Kerns  v.  Graves,  26 
Cal.  156.) 

§  337.  Execution  after  death  of  a  party.  "Not- 
withstanding the  death  of  a  party  after  the  judgment, 
execution  thereon  may  be  issued,  or  it  may  be  en- 
forced as  follows: — 

"i.  In  case  of  the  death  of  the  judgment  creditor, 
upon  the  application  of  his  executor,  or  administra- 
tor, or  successor  in  interest. 


195 


EXECUTION — GENERALLY.  §  338 


"2.  In  case  of  the  death  of  the  judgment  debtor, 
if  the  judgment  be  for  the  recovery  of  real  or  per- 
sonal property,  or  the  enforcement  of  a  lien  there- 
on."    {California.     Code  Civ.  Proc,  sec.  686.) 

"If  execution  is  actually  levied  upon  any  property 
of  the  decedent  before  his  death,  the  same  may  be 
sold  for  the  satisfaction  thereof;  and  the  officer 
making  the  sale  must  account  to  the  executor  or  ad- 
ministrator for  any  surplus  in  his  hands."  {Califor- 
nia.    Code  Civ.  Proc,  sec.  1505-) 

§  338.    Execution  before  entry  of  judgment.     An 

execution  issued  upon  a  valid  judgment  is  sufficient 
authority  to  the  sheriff  to  make  a  sale  of  lands.  In 
the  case  of  I.os  Angeles  Bank  v.  Raynor,  61  Cal.  145, 
it  was  urged  that  the  record  showed  that  the  judg- 
ment was  not  entered  when  the  execution  was  issued, 
but  the  court  held  that  it  was  not  necessary  that  it 
should  have  been;  that  the  enforcement  of  a  judg- 
ment does  not  depend  upon  its  entry  or  docketing; 
that  these  are  merely  ministerial  acts,  the  first  of 
which  is  required  to  be  done  for  putting  in  motion 
the  right  of  appeal  from  the  judgment  itself,  and  of 
limiting  the  time  within  which  the  right  may  be  ex- 
ercised or  in  which  the  judgment  may  be  enforced, 
and  the  other,  for  the  purpose  of  creating  a  lien  by 
the  judgment  upon  the  real  property  of  the  debtor. 
But  "neither  is  necessary  for  the  issuance  of  an  ex- 
ecution which  has  been  duly  rendered.  Without 
docketing  or  entry,  execution  may  be  issued  on  the 
judgment,  and  land  levied  upon  and  sold  {Hastings 
V.  Cunningham,  39  Cal.  144)  ;  and  the  deed  executed 
by  the  sheriff,  in  fulfillment  of  the  sale,  not  only 
proves  the  sale,  but  also  estops  the  defendant  from 
controverting  the  title  acquired  by  it." 


§§  339-341       SHERIFFS  AND  CONSTABLES.  196 

§  339.  Receipt  of  writ.  The  receipt  of  a  writ 
by  the  officer  dates  from  the  time  he  indorses  it  as 
received.  A  writ  may  be  handed  to  a  sheriff  and 
he  may  refuse  to  "receive"  it  until  his  fees  for  service 
be  paid.  Before  "receiving"  the  writ  and  indorsing 
upon  it  the  time  of  its  reception,  the  officer  should 
examine  it  to  satisfy  himself  that  it  is  regular  on  its 
face.  For  it  may  sometimes  happen,  in  the  hurry 
of  issuing  a  writ,  that  some  feature  essential  to  its 
validity  may  have  been  omitted  by  the  clerk,  and  the 
omission  have  passed  unnoticed  by  the  person  to 
whom  it  was  delivered. 

§  340.    Writ  cannot  be  received     n  Sunday.     In 

the  absence  of  statutory  authority,  a  writ  of  attach- 
ment or  execution  placed  in  the  sheriff's  hands  on 
Sunday  cannot  be  officially  received  by  him  on  that 
day.  It  can  only  be  considered  officially  in  his  hands 
when  Sunday  has  expired.  (Whitney  v.  Butterfield, 
13  Cal.  335,  73  Am.  Dec.  584.  See,  also,  sec.  213, 
ante.) 

§  341.  What  the  writ  must  require.  The  writ 
of  execution  issued  out  of  the  superior  court  must 
be  issued  in  the  name  of  the  people,  sealed  with  the 
seal  of  the  court,  and  subscribed  by  the  clerk,  and  be 
directed  to  the  sheriff,  and  it  must  intelligibly  refer 
to  the  judgment,  stating  the  court,  the  county  where- 
the  judgment-roll  is  filed,  and  if  it  be  for  money,  the 
amount  thereof  and  the  amount  actually  due  thereon, 
and  if  made  payable  in  a  specified  kind  of  money 
or  currency,  the  execution  must  also  state  the  kind  of 
money  or  currency  in  which  the  judgment  is  payable. 
(California.     Code  Civ.  Proc,  sec.  682.) 


197  EXECUTION — GENERALLY.  §  342 

§  342.    Delay  in  service  of  writ  inexcusable.    The 

terse  maxim,  "Delays  are  dangerous,"  finds  signifi- 
cant application  in  nearly  all  duties  of  the  sheriffs 
and  constables.  It  conveys  an  admonition  which 
should  never  be  lost  sight  of  from  one  year's  end  to 
another.  The  evil  of  procrastination  has  subjected 
many  an  officer  to  loss,  and  they  vv^ho  are  subject  to 
it  as  a  habit  must  prove  unfitted  for  the  discharge  of 
the  important  duties  that  devolve  upon  them  as  of- 
ficers. Some  pertinent  suggestions  on  this  point  are 
to  be  found  in  the  decision  quoted  in  section  31,  ante. 
An  illustration  in  point  (and  there  are  many  more 
on  record  in  the  courts)  may  be  found  in  the  case  of 
Howe  V.  Union  Insurance  Co.,  42  Cal.  528,  Fed. 
Cas.  No.  6776,  wherein  the  plaintiff  was  subjected  to 
a  loss  of  $1,465,  by  reason  of  the  neglect  of  an  officer 
to  serve  a  garnishment  under  an  execution  which  had 
been  placed  in  his  hands.  Howe  commenced  an  at- 
tachment suit  against  one  McCann,  and  garnished 
money  of  McCann  in  the  defendant's  hands,  and 
afterwards  recovered  judgment  and  issued  execution 
to  the  sheriff.  The  officer  went  to  the  office  of  the 
insurance  company  for  the  purpose  of  collecting  the 
money.  The  secretary  of  the  company  admitted  hav- 
ing the  money,  but  did  not  pay  it  over.  The  sheriff 
did  not  levy  the  execution,  supposing  that  the  money 
would  be  paid  in  a  day  or  two.  Before  any  further 
steps  had  been  taken,  and  within  less  than  four 
months  from  the  time  when  the  attachment  was  issued 
and  served,  proceedings  were  commenced  to  have 
McCann  declared  a  bankrupt.  At  that  time  the 
bankrupt  law  provided  that  all  attachments  upon 
mesne  process  within  four  months  before  the  pro- 
ceedings in  bankruptcy  should  be  thereby  dissolved 


§§  343>  344       SHERIFFS  AND  CONSTABLES.  198 

in  case  the  defendant  in  the  attachment  be  declared 
a  bankrupt.  Under  that  provision  it  is  clear  that  if 
the  execution  had  been  levied  upon  the  fund  before 
the  proceedings  in  bankruptcy  were  commenced,  he 
would  have  acquired  a  lien  upon  the  fund,  which 
would  not  have  been  divested  by  the  proceedings  in 
bankruptcy.  As  it  was,  the  money  went  to  the  as- 
signee in  bankruptcy,  and  Howe  was  obliged  to  take 
merely  his  pro  rata  with  the  other  creditors.  The 
sheriff's  proper  course  in  the  premises  was  to  have 
served  a  garnishment  upon  the  insurance  company 
and  demanded  possession  of  the  money. 

§  343.    Penalty    for    neglect    to    levy.      "If    the 

sherifif  to  whom  a  writ  of  execution  is  delivered  neg- 
lects or  refuses,  after  being  required  by  the  creditor 
or  his  attorney,  to  levy  upon  or  sell  any  property  of 
the  party  charged  in  the  writ  which  is  liable  to  be 
levied  upon  and  sold,  he  is  liable  to  the  creditor  for 
the  value  of  such  property."  {California.  Pol.  Code, 
Sec.  4180.) 

§  344.  Void  and  voidable  writs.  Before  making 
levy  the  officer  should  satisfy  himself  by  examination 
of  the  writ  that  it  is  regular  on  its  face.  The  de- 
cisions of  the  courts  differ  widely  as  to  the  responsi- 
bility of  an  officer  in  executing  void  and  voidable 
writs.  If  a  writ  is  not  regular  on  its  face,  he  may 
return  it  to  the  party  who  delivered  it  to  him,  who 
must  take  it  for  correction  to  the  officer  who  issued 
it,  if  the  error  is  such  that  correction  can  be  made. 
A  writ  is  not  regular  on  its  face  if  it  is  not  issued  in 
the  name  of  the  people,  nor  (if  a  superior  court  writ) 
if  it  has  no  seal.  The  word  "seal"  includes  an  impres- 


199  EXECUTION — GENERALLY.  §  345 

sion  of  the  seal  required  to  be  used  upon  the  paper 
alone  as  well  as  upon  wax  or  a  wafer  affixed  thereto. 
If  the  writ  is  subscribed  by  a  deputy  clerk  and  not 
by  his  principal,  it  does  not  comply  with  the  law, 
which  provides  that  it  must  be  subscribed  by  the 
clerk.  Executions  that  are  not  regular  on  their  face 
are  liable  to  be  vacated;  and,  although  irregular  and 
voidable  in  some  instances,  where  they  are  issued 
upon  a  valid  judgment,  the  officer  cannot  refuse  to 
make  a  levy. 

§  345.     Irregularities     in     writ     or     proceedings. 

When  an  execution  is  placed  in  the  sheriff's  hands, 
he  is  not  bound  to  inquire  whether  there  is  a  judg- 
ment to  support  it,  or  whether  the  execution  corre- 
sponds exactly  with  the  judgment.  If  it  be  regular 
on  its  face,  it  is  his  duty  to  execute  it.  But,  although 
"a  sheriff  or  other  ministerial  officer  is  justified  in 
the  execution  of  and  must  execute  all  process  and 
orders  regular  on  their  face  and  issued  by  competent 
authority,  whatever  may  be  the  defect  in  the  pro- 
ceedings upon  which  they  were  issued"  (California. 
Pol.  Code,  sec.  4187),  yet,  if  he  know  of  any  irregu- 
larity in  those  proceedings,  he  will  put  himself  in 
jeopardy  the  moment  he  proceeds  to  execute  the  writ. 
The  assurance  of  protection  to  the  officer  implied  in 
the  section  here  quoted  is  to  be  found  in  nearly  all 
works  that  treat  upon  or  refer  to  the  duties  of  min- 
isterial officers,  and  yet  there  are  perhaps  but  few 
such  officers  who  have  not  at  some  time  or  other 
found  themselves  in  the  position  of  party  defendant 
in  vexatious  and  expensive  suits  by  blindly  relying 
upon  the  unqualified  promise  contained  therein.  No 
legislative  assurance  of  protection  to  an  officer  for 


§§  346-348       SHERIFFS  AND  CONSTABLES.  200 

serving  process  illegally  issued  can  divest  a  party 
aggrieved  by  reason  of  such  service  from  his  right 
to  seek  his  remedy  in  the  courts  against  the  officer. 
After  an  officer  has  been  brought  into  court  in  an 
action  against  him  for  taking  property  under  an  ille- 
gal process,  he  may  or  may  not  be  able  to  justify 
himself  and  avert  the  penalties  prescribed  for  willful 
wrongdoers,  but  his  justification  will  then  have  come 
too  late  to  shield  him  from  the  annoyances  and  ex- 
pense of  a  defense.  {See^  also,  sees.  59,  203,  344, 
ante.) 

§  346.  Execution — When  void.  Executions  not 
under  seal,  issued  from  a  court  which  has  been  abol- 
ished, or  is  not  of  competent  jurisdiction,  or  upon  a 
void  judgment,  or  upon  a  judgment  against  an  ad- 
ministrator, or  after  the  death  of  the  judgment 
debtor,  or  after  an  appeal  and  stay,  are  instanced  by 
the  court  as  probable  examples  of  void  executions. 
{Hunt  V.  Loucks,  38  Cal.  372,  99  Am.  Dec.  404.) 

§  347.  When  voidable.  If  an  execution  directs 
the  levy  for  more  money  than  the  judgment  calls  for, 
it  is  not  for  that  reason  void,  but  only  voidable.  Ex- 
ecutions which  have  been  issued  according  to  the 
established  course  of  practice,  and  are  not  so  errone- 
ous that  they  cannot  be  amended,  are  not  void.  (Hunt 
V.  Loucks,  38  Cal.  372,  99  Am.  Dec.  404.) 

§  348.  When  amendable.  If  an  execution  calls 
for  too  much  money,  it  will  not  be  set  aside,  but 
amended,  so  as  to  agree  with  the  judgment,  upon  the 
application  of  the  parties  to  it,  or  either  of  them. 
{Hunt  V.  Loucks,  38  Cal.  372,  99  Am.  Dec.  404.) 


20I  EXECUTION — GENERALLY.  §  349 

An  execution  which  is  not  issued  in  the  name  of 
the  people,  or  directed  to  the  sheriff,  is  amendable, 
and  therefore  not  void,  but  only  voidable,  and  a  sale 
under  it  is  valid.     {Hibberd  v.  Smith,  50  Cal.  511.) 

§  349.  Irregular  writ — Duty  of  officer.  If  an  ir- 
regular or  imperfect  execution  is  amendable,  it  is 
not  void,  but  only  voidable,  and  it  is  the  duty  of  the 
sheriff  to  serve  and  return  it.  {Van  Cleave  v. 
Bucher,  79  Cal.  600,  21  Pac.  954.) 

The  court  has  no  power  to  make  an  order  directing 
a  sheriff  to  enforce  an  execution  by  levying  on  a  par- 
ticular piece  of  property.     {Eraser  v.  Thrift,  50  Cal. 

476.) 

The  plaintiff,  in  an  action  of  ejectment,  relied 
upon  an  execution  sale,  to  which  neither  he  nor  the 
defendant  was  a  party.  The  execution  called  for 
$695  more  than  the  judgment,  but  corresponded  with 
it  in  other  respects :  Held,  that  the  execution  was  not 
void,  but  voidable  only,  and  the  sale  therefore  valid. 
{Hunt  V.  Loucks,  38  Cal.  372,  99  Am.  Dec.  404.) 

If  the  execution  calls  for  the  amount  of  the  judg- 
ment in  the  court  below,  and  for  the  costs  of  an  ap- 
peal also,  it  is  not,  for  that  reason,  irregular.     {Id.) 

A  sale  made  under  a  valid,  though  erroneous,  judg- 
ment, which  has  not  been  reversed  or  set  aside,  is 
valid.     {Moore  v.  Martin,  38  Cal.  428.) 

If  an  officer  receives  an  execution,  and  he  knows 
that  the  judgment  has  been  satisfied,  he  cannot  levy 
thereunder. 

If  an  execution  correctly  refers  to  a  judgment,  in 
such  manner  as  to  identify  it,  it  is  sufficient  to  justify 
the  sheriff  in  enforcing  it,  even  if  it  contains  an  error 
in  reciting  the  day  on  which  the  judgment  had  been 
rendered.     {Franklin  v.  Merida,  50  Cal.  289.) 


§§  3S^-3S3       SHERIFFS  AND  CONSTABLES.  202 

§  350.  Writ  not  open  to  collateral  attack.  Exe- 
cutions which  are  merely  voidable  cannot  be  attacked 
collaterally  even  by  the  parties  to  them,  much  less 
by  strangers.  (Hunt  v.  Loucks,  38  Cal.  372,  99  Am. 
Dec.  404.) 

§351.    When  sheriff  may  levy  on  real  property. 

In  the  absence  of  any  statute  to  the  contrary,  the 
sheriff  may,  on  the  request  of  the  defendant  in  exe- 
cution, properly  levy  on  real  estate,  though  there  be 
personal  property  present  amply  sufficient  to  satisfy 
the  execution.  {Smith  v.  Randall,  6  Cal.  52,  65  Am. 
Dec.  475.)     The  request  should  be  in  writing. 

§  352.  Judgment  set  aside  after  levy.  If  an  exe- 
cution is  regularly  issued  on  a  valid  judgment,  en- 
tered on  a  default,  and  the  sheriff  levies  on  property 
by  virtue  of  the  same,  and  retains  it  several  days, 
until  the  default  is  opened  and  the  judgment  set  aside, 
and  then  returns  it  to  the  defendant,  the  plaintiff  is 
not  liable  in  damages  for  the  seizure  and  detention 
of  the  property,  if  he  acted  without  fraud.  (White 
V.  Adams,  52  Cal.  435.) 

§  353-  Staying  execution.  If  a  judgment  upon 
which  an  execution  issues  and  the  execution  itself  are 
void  upon  their  face,  the  court  has  power  on  motion 
to  afford  relief,  and  can  arrest  the  process.  (Sanchez 
V.  Carriaga,  2^  Cal.  170.) 

Notice  of  a  motion  to  set  aside  an  execution  and 
a  levy  made  thereunder  will  not  operate  as  a  stay  of 
proceedings.  (Byran  v.  Berry,  8  Cal.  130.)  On  this 
point  the  court  say:  "We  think  the  district  court  did 
not  err  in  overruling  the  motion  to  set  aside  the  exe- 


203  EXECUTION — GENERALLY.        §§  354,  355 

cution  and  levy.  The  notice  that  a  motion  would  be 
made  did  not  operate  as  a  stay  of  proceedings.  After 
giving  the  notice,  the  defendant  should  have  pro- 
cured an  order  staying  the  sale  under  the  execution 
until  his  motion  could  have  been  heard.  (Greenup 
V.  Brown,  Breese  252 ;  Beaird  v.  Foreman,  Breese 
385,  12  Am.  Dec.  197;  Robinson  v.  Chisseldine,  4 
Scam.  333.) 

Where  third  parties  have  purchased  at  an  ex- 
ecution sale,  it  is  too  late  to  move  to  set  aside  the 
execution. 

An  undertaking  for  costs  and  damages  under  sec- 
tion 941  of  the  Code  of  Civil  Procedure,  California, 
stays  proceedings  on  an  appeal  in  all  cases,  except 
those  specified  in  sections  942-945;  and  it  was  held, 
in  Root  V.  Bryant,  54  Cal.  183,  that  upon  an  appeal 
from  a  judgment  for  the  foreclosure  of  a  lien  and 
the  sale  of  the  property  subject  thereto — the  appeal 
being  taken  by  a  lienholder,  not  in  possession  of  the 
land,  whose  lien  was  adjudged  subordinate  to  the 
lien  foreclosed — the  undertaking  for  costs  and  dam- 
ages stayed  the  judgment. 

§  354.    Sheriff  cannot  sell  when  stay  is  ordered. 

A  sheriff  who  sells  property  on  an  execution  issued 
by  a  justice  of  the  peace,  after  the  justice  has  notified 
him  that  a  writ  of  certiorari  has  been  issued,  and 
commanded  him  to  stay  all  proceedings  upon  the 
execution,  is  liable  for  the  value  of  the  property. 
{Spencer  v.  Long,  39  Cal.  700.) 

§  355-  Quashing  execution.  Upon  the  quashing 
of  an  execution,  the  oflicer  is  bound  to  return  the 
property  levied  upon  to  the  defendant  unless  he  have 


§  35^  SHERIFFS  AND  CONSTABLES.  204 

Other  writs  in  hand.  In  the  case  of  Wellington  v. 
Sedgwick,  12  Cal.  470,  the  defendant,  as  sheriff,  hav- 
ing an  execution  against  Stevens  &  Markley,  levied 
it  upon  certain  goods,  the  property  of  Stevens  & 
Markley,  and  placed  them  in  the  hands  of  Welling- 
ton, as  keeper,  and  subsequently  the  execution  was 
quashed,  having  been  issued  without  seal;  and  be- 
tween that  time  and  the  issue  and  levy  of  a  new 
execution,  Wellington,  who  still  remained  in  pos- 
session of  the  goods,  purchased  the  goods  of  Stevens 
&  Markley.  The  court  held  that  such  purchase  was 
valid,  and  vested  the  property  in  Wellington.  Upon 
the  levy  of  the  execution,  the  property  vested  in  the 
sherifif  for  certain  purposes;  his  title  was  only  a  qual- 
ified title,  which  was  defeated  by  the  quashing  of 
the  execution.  The  title  then  returned  to  Stevens 
&  Markley;  they  could  discharge  the  sheriff  from 
the  duty  of  returning  the  property  to  them,  which 
they  did  by  the  sale  to  Wellington. 

§  356.  How  writ  is  executed.  "The  sheriff  must 
execute  the  writ  against  the  property  of  the  judg- 
ment debtor,  by  levying  on  a  sufficient  amount  of 
property,  if  there  be  sufficient,  collecting  or  selling 
the  things  in  action,  and  selling  the  other  property, 
and  paying  to  the  plaintiff  or  his  attorney  so  much 
of  the  proceeds  as  will  satisfy  the  judgment.  Any 
excess  in  the  proceeds  over  the  judgment  and  accru- 
ing costs  must  be  returned  to  the  judgment  debtor, 
unless  otherwise  directed  by  the  judgment  or  order 
of  the  court.  When  there  is  more  property  of  the 
judgment  debtor  than  is  sufficient  to  satisfy  the  judg- 
ment and  accruing  costs  within  the  view  of  the  sheriff, 
he  must  levy  only  on  such  parts  of  the  property  as 


205  EXECUTION — GENERALLY.  §  357 

the  judgment  debtor  may  indicate,  if  the  property 
indicated  be  amply  sufficient  to  satisfy  the  judgment 
and  costs."  (California.  Code  Civ.  Proc,  sec.  691. 
See,  also,  sec.  349,  ante.) 

§  357.  Levy  of  execution  in  California.  The  levy 
of  the  writ  of  execution  is  made  in  the  same  manner 
as  the  levy  of  a  writ  of  attachment.  (Code  Civ.  Proc, 
sees.  542,  688.)  The  code  provisions  as  to  the  manner 
of  making  levy  are  to  be  found  in  sections  372-394  of 
this  work.  "If  property  of  the  judgment  debtor  has 
already  been  attached  in  the  same  action,  the  sheriff 
must  satisfy  the  execution  out  of  the  property  at- 
tached by  him  which  has  not  been  delivered  to  the 
defendant,  or  a  claimant  thereto,  or  subjected  to  exe- 
cution on  another  judgment  recovered  previous  to 
the  issuing  of  the  attachment,  if  it  be  sufficient  for 
that  purpose. 

"i.  By  paying  the  plaintiff  the  proceeds  of  all  sales 
of  perishable  property  sold  by  him,  or  any  debts  or 
credits  collected  by  him,  or  so  much  as  shall  be  neces- 
sary to  satisfy  the  judgment. 

"2.  If  any  balance  remain  due,  and  an  execution 
shall  have  been  issued  on  the  judgment,  he  must  sell 
under  the  execution  so  much  of  the  property,  real  or 
personal,  as  may  be  necessary  to  satisfy  the  balance,  if 
enough  for  that  purpose  remain  in  his  hands.  No- 
tices of  the  sales  must  be  given,  and  the  sales  conduct- 
ed as  in  other  cases  of  sales  on  execution."  (Code 
Civ.  Proc,  sec  550.) 

If  personal  property  is  already  held  under  attach- 
ment, the  levy  of  the  execution  is  made  by  indorsing 
upon  the  writ  the  time  of  its  receipt  and  a  memoran- 
dum or  certificate  of  the  fact  of  levy  upon  the  at- 
tached property. 


§§358-360        SHERIFFS  AND  CONSTABLES.  2o6 

§  358.  Return  of  writ.  An  execution  should  not 
be  returned  until  the  return  day  indicated  in  the  writ, 
except  upon  written  instructions  from  the  plaintiff  or 
plaintiff's  attorney.  An  officer's  return  on  process 
of  every  kind  should  state  that  he  has  performed  what 
the  mandatory  part  of  the  process  requires  of  him. 
It  should  be  a  report  of  his  proceedings,  and  should 
contain  a  statement  of  the  acts  which  he  has  done 
under  and  by  virtue  of  it,  and  the  place  and  the  time 
when  and  where  they  were  done.  The  office  is  mere- 
ly ministerial.  Hence  it  is  insufficient  for  him  to 
return  that  he  has  duly  or  legally  served  the  process 
committed  to  him.  The  time  for  its  return  does  not 
therefore  commence  to  run  until  it  has  been  indorsed 
"received."  In  California  the  execution  may  be  made 
returnable,  at  any  time  not  less  than  ten  nor  more 
than  sixty  days  after  its  receipt  by  the  sheriff,  to  the 
clerk  with  whom  the  judgment- roll  is  filed.  (Code 
Civ.  Proc,  sec.  683.) 

§359.  Necessity  of  prompt  return.  The  sheriff 
is  liable  on  his  bond  if  he  fails  to  return  an  order  of 
sale,  whereby  the  plaintiff  loses  his  debt  by  reason  of 
failure  to  procure  entry  of  a  deficiency  judgment. 
[See,  also,  sec.  360,  post.) 

§  360.  Proper  filing  of  return.  Care  should  be 
taken  by  the  sheriff  to  see  that  his  return  is  properly 
filed  by  the  clerk;  for  if  the  judgment  creditor  loses 
his  debt  by  not  procuring  deficiency  judgment,  no 
presumptions  are  indulged  in  favor  of  the  sheriff,  if 
the  return  be  subsequently  found  in  the  clerk's  office 
without  indorsement  of  filing.  {Boyd  v.  Desmond, 
79  Cal.  250,  21  Pac.  755.) 


207  EXECUTION — GENERALLY.       §§361-364 

§361.    Return  —  Time  suspended  by  injunction. 

An  order  made  by  a  court  of  competent  jurisdiction, 
staying  the  sheriff  from  interference  with  the  prop- 
erty of  a  judgment  debtor  suspends,  during  its  con- 
tinuance, the  running  of  the  statutory  period  for 
executing  the  process.  {Ansonia  Brass  and  Copper 
Co.  V.  Connor,  103  N.  Y.  502,  9  N.  E.  238.) 

§  362.  Stay  of  proceedings  extends  time.  When 
a  stay  of  proceedings  is  ordered,  the  time  of  the  stay 
is  not  to  be  computed  as  part  of  the  time  in  which 
the  writ  runs  to  the  return  day.  That  is,  if  a  writ  is 
made  returnable  within  sixty  days,  and  a  stay  of  pro- 
ceedings is  granted  for  twenty  days,  the  writ  will  ^ 
have  eighty  days  to  run  before  it  must  be  returned. 

§  363.  Return  in  foreclosure  cases.  An  order 
of  sale  in  foreclosure,  either  by  certified  copy  of  the 
decree  or  by  writ  issued  by  the  clerk  of  the  court,  is 
not  an  execution  within  the  meaning  of  a  provision 
requiring  the  return  of  execution  within  a  certain 
period;  and  if  the  writ  contain  such  a  direction,  it  is 
of  no  effect,  and  a  sale  made  after  the  time  mentioned 
is  valid.  [Southern  Cal.  L.  Co.  v.  Hotel  Co.,  94  Cal. 
217,  28  Ain.  St.  Rep.  115,  29  Pac.  627.) 

§  364.    Foreclosure  of  mortgage  and  other  liens. 

In  California  a  valid  mortgage  or  mechanics'  lien 
existing  upon  property  of  the  insolvent  debtor  at  the 
time  of  filing  the  petition  may  be  foreclosed  by  leave 
of  the  insolvency  court,  and  the  property  may  be  sold 
on  execution  sale,  the  mortgagee,  however,  being 
required  to  waive  all  claim  upon  the  other  assets  of 
the  insolvent  debtor.     (Insolvent  Act  of  1880,  sec.  44; 


§§  3^5^  3^6       SHERIFFS  AND  CONSTABLES.  2o8 

Montgomery  v.  Merrill,  62  Cal.  385;  Bradford  v. 
Dorsey,  63  Cal.  122.) 

§  365.    Execution  against  a  corporation  for  fine. 

''When  a  fine  is  imposed  upon  a  corporation  on  con- 
viction, it  may  be  collected  by  virtue  of  the  order 
imposing  it,  by  the  sheriff  of  the  county,  out  of  its 
real  and  personal  property,  in  the  same  manner  as 
upon  an  execution  in  a  civil  action."  (California. 
Pen.  Code,  sec.  1397.) 

§  366.  Justice^s  court  executions.  In  California 
execution  for  the  enforcement  of  a  judgment  of  a 
justice's  court  may  be  issued  at  any  time  within  five 
years  from  the  entry  of  judgment.  It  must  be  direct- 
ed to  the  sherifl  or  to  a  constable  of  the  county,  and 
must  be  subscribed  by  the  justice,  and  bear  date  the 
day  of  its  delivery  to  the  officer.  At  the  request  of 
the  judgment  creditor,  the  writ  may  be  renewed  be- 
fore the  expiration  of  time  fixed  for  its  return,  by 
the  word  "renewed"  written  thereon,  with  the  date 
thereof,  and  subscribed  by  the  justice.  Such  renewal 
has  the  efifect  of  an  original  issue,  and  may  be  repeat- 
ed as  often  as  necessary.  {California.  Code  Civ. 
Proc,  sees.  901-903.) 

The  filing  and  docketing  of  a  transcript  of  a  judg- 
ment rendered  by  a  justice  of  the  peace  in  the  office 
of  the  clerk  of  the  county  does  not  empower  the  clerk 
of  the  court  in  which  it  is  filed  and  docketed  to  issue 
an  execution  on  the  same  after  five  years  have  elapsed 
from  the  date  of  its  rendition.  (Kerns  v.  Graves,  26 
Cal.  156.) 

With  reference  to  property  in  the  same  county,  the 
provisions  for  the  enforcement  of  an  execution  upon 


209  EXECUTION — GENERALLY.       §§  367-370 

a  judgment  in  a  justice's  court  are  the  same  as  those 
relating  to  courts  of  record. 

§  367.    Power  of  justice  over  his  judgments.     A 

justice  of  the  peace  has  power  to  recall  an  execution 
issued  by  him  on  a  void  judgment,  and  stay  further 
proceedings,  even  if  the  judgment  has  been  docketed 
in  the  office  of  the  county  clerk  and  the  execution  has 
been  issued  by  the  clerk.  {Gates  v.  Lane,  49  Cal. 
266.) 

§  368.  Enjoining  justice's  judgment.  If  a  judg- 
ment rendered  by  a  justice  of  the  peace  is  void  on  its 
face,  a  suit  in  equity  cannot  be  maintained  to  restrain 
its  enforcement  by  execution,  even  if  the  execution  is 
issued  by  the  county  clerk  on  a  copy  of  the  judgment 
docketed  with  him.     {Gates  v.  Lane,  49  Cal.  266.) 

§  369.    Execution  to  constable — Levy  by  sheriff. 

The  fact  that  an  execution  issued  to  a  constable  was 
served  by  the  sheriff  does  not  render  the  service  void 
where  it  might  have  been  issued  to  either  the  sheriff 
or  constable.  {Ross  v.  Wellman,  102  Cal.  i,  36  Pac. 
402.) 

§  370.    Setting  aside  a  justice's  court  execution. 

Where  plaintiff  seeks  to  enjoin  a  sale  of  personal 
property,  under  an  execution  issued  upon  a  judgment 
recovered  against  him  in  a  justice's  court,  on  the 
ground  that  the  summons  was  never  served  on  him, 
and  therefore  that  the  justice  never  acquired  juris- 
diction of  his  person:  Held,  that  plaintiff's  remedy 
is  by  motion  in  the  justice's  court  to  set  aside  the  exe- 
cution.    {Comstock  v.  Clemens,  19  Cal.  jj.) 


^27^  SHERIFFS  AND  CONSTABLES.  2IO 

§  371.     Stay  of  justice's  court  execution.     The 

court,  or  any  justice  thereof,  may  stay  the  execution 
of  any  judgment,  including  any  judgment  in  a  case 
of  forcible  entry  or  unlawful  detainer,  for  a  period 
not  exceeding  ten  days.     {In  effect  June  14,  1906.) 


CHAPTER  XIV. 

EXECUTION — PERSONAL  PROPERTY. 

§  3/2.     Levy,  how  made. 

§  373.  Entry  into  buildings. 

§  374-  Expense  of  keeping  property  levied  upon. 

§  375.  Inventory  of  property. 

§  376.  Notice  of  sale. 

§  377.  Levy  upon  judgments. 

§  378.  Indebtedness  evidenced  by  a  promissory  note. 

§  379-  Certain  corporation  stock  not  subject  to  execution. 

§  380.  Property  held  as  security  not  subject  to  execution. 

§  381.  Property  of  the  inhabitants  not  liable  for  county  debts. 

§  382.  Property  in  custody  of  law. 

§  383.  Equitable  claim  not  subject  to  execution. 

§  384-  Property  of  wife  not  liable  for  husband's  debt. 

§  385.  Gift  from  husband  to  wife. 

§  386.  Personal  privilege  or  right — How  sold. 

§  387.  Franchise  not  liable  to  execution  sale. 

§  388.  Personal  property  mortgaged,  pledged,  etc. 

§  389.  Claim  by  third  party.  ■.; 

§  390.  Levy  on  partnership  or  joint  property. 

§  391.  Priority  of  partnership  creditors. 

§  392.  Harvested  grain  crop — Different  owners. 

§  393.  Partnership — Sale  or  dissolution. 

§  394.  Release  of  execution. 

§  372.  Levy,  how  made.  The  manner  of  mak- 
ing the  levy  of  the  writ  of  execution  is  the  same  as 
upon  levy  of  attachment.  The  California  Code  of 
Civil  Procedure  {sec.  688)  provides  that  "shares  and 
interest  in  any  corporation  or  company,  and  debts 
and  credits,  and  all  other  property,  both  real  and 
personal,  or  any  interest  in  either  real  or  personal 


§§373-375       SHERIFFS  AND  CONSTABLES.  212 

property,  and  all  other  property  not  capable  of  man- 
ual delivery,  may  be  attached  on  execution,  in  like 
manner  as  upon  writs  of  attachment.  Gold  dust  must 
be  returned  by  the  officer  as  so  much  money  collected, 
at  its  current  value,  without  exposing  the  same  to  sale. 
Until  a  levy,  property  is  not  affected  by  the  execu- 
tion." In  Colorado  execution  binds  the  personal 
property  of  the  defendant  as  soon  as  the  writ  comes 
to  the  sheriff's  hands.  (As  to  7nanner  of  levying  at- 
tachinent,  see  chapters  X  and  XII,  ante.) 

§  373.  Entry  into  buildings.  An  execution  will 
not  justify  breaking  into  a  house.  But  after  entrance 
has  been  lawfully  effected  through  an  outside  door 
the  officer  may,  for  the  purpose  of  levying  upon  prop- 
erty, break  through  inside  doors  to  get  at  the  prop- 
erty. 

§  374.    Expense  of  keeping  property  levied  upon. 

The  sheriff  is  allowed  his  necessary  expenses  in  keep- 
ing and  preserving  property  seized  on  attachment  or 
execution,  the  amount  to  be  fixed  by  the  court  and 
paid  out  of  the  fees  collected  in  the  action.  (Califor- 
nia.   Stats.  1893,  p.  507.) 

§  375.  Inventory  of  property.  A  special  inven- 
tory of  the  articles  to  be  sold  should  be  prepared,  so 
that  confusion  may  be  avoided  when  the  sale  takes 
place.  A  large  stock  of  goods  sold  in  parcels  cannot 
well  be  disposed  of  at  a  public  sale  where  there  are 
many  bidders  present  without  such  an  inventory  and 
prearranged  method  of  conducting  the  sale.  (See, 
also,  sec.  301,  ante.) 


213  PERSONAL  PROPERTY.  §§37^,377 

§  376.  Notice  of  sale.  No  sale  should  be  held  ex- 
cept after  the  statutory  notice  has  been  given,  which 
in  California  is  by  posting  written  (or  printed)  no- 
tice of  the  time  and  place  of  sale  in  three  public 
places  in  the  township  or  city  where  the  sale  is  to 
take  place,  for  not  less  than  five  nor  more  than  ten 
days.  The  notices  must  state  the  kind  of  money  or 
currency  in  which  bids  may  be  made  at  such  sale, 
which  must  be  the  same  as  that  specified  in  the  judg- 
ment. If  the  writ  does  not  specify  in  the  judgment 
the  kind  of  money,  the  sale  should  be  made  for  "law- 
ful money  of  the  United  States." 

§  377.  Levy  upon  judgments.  The  method  of 
levying  upon  a  judgment  is  so  clearly  and  authorita- 
tively pointed  out  in  the  decision  of  the  supreme 
court  of  the  state  of  California,  in  the  case  of  Mc- 
Bride  v.  Fallon,  65  Cal.  301,  4  Pac.  17,  that  the  por- 
tion of  that  decision  relating  thereto  is  herewith 
quoted. 

Two  cross-judgments  existed  between  the  parties. 
One  party  took  out  an  execution  on  the  judgment  in 
his  favor,  and  caused  it  to  be  levied  on  the  judgment 
against  him,  which  was  subsequently  sold  for  a  nom- 
inal sum.  The  plaintiff  in  whose  favor  the  judgment 
so  levied  upon  and  sold  was  entered  moved  the  court, 
after  said  sale,  that  execution  issue  thereon.  The 
motion  was  granted,  and  from  that  order  the  appeal 
was  taken.  In  deciding  the  case  the  supreme  court 
say:  "We  are  clearly  of  opinion  that  a  judgment 
cannot,  in  any  case,  be  levied  on  and  sold  under  exe- 
cution as  the  judgment  in  this  case  was.  After  enu- 
merating the  kinds  of  property  of  a  judgment  debtor 
liable  to  execution,  the  code  provides  that  'shares  and 


§377  SHERIFFS  AND  CONSTABLES.  214 

interests  in  any  corporation  or  company  and  debts 
and  credits  .  .  .  and  all  other  property  not  capable 
of  manual  delivery,  may  be  attached  on  execution  in 
like  manner  as  upon  writs  of  attachment.'  {Code 
Civ.  Proc,  sec.  688.) 

"  'Debts  and  credits,  and  property  not  capable  of 
manual  delivery,  must  be  attached'  in  the  mode 
pointed  out  in  subdivision  5,  section  542,  Code  Civil 
Procedure,  that  is,  'by  leaving  with  the  person  owing 
such  debts,  or  having  in  his  possession  or  under  his 
control  such  credits  and  other  personal  property,  or 
with  his  agent,  a  copy  of  the  writ  and  a  notice  that 
the  debts  owing  by  him  to  the  defendant,  or  the 
credits  and  other  personal  property  in  his  possession 
or  under  his  control,  belonging  to  the  defendant,  are 
attached  in  pursuance  of  such  writ.' 

"The  fact  that  a  debt  is  evidenced  by  a  judgment 
does  not,  in  our  opinion,  make  it  anything  more  or 
less  than  a  debt,  or  more  capable  of  manual  delivery 
than  it  would  be  if  not  so  evidenced.  No  provision 
is  made  for  attaching  or  levying  on  evidences  of  debt. 
It  is  the  debt  itself  which  may  be  attached  by  writ 
of  attachment,  or  'on  execution  in  like  manner  as 
upon  writs  of  attachment.'  This  we  think  to  be  the 
meaning  of  the  code,  and  the  mode  prescribed  by  it 
is  exclusive."     (Code  Civ.  Proc,  sees.  4,  18.) 

In  the  later  case  of  Dore  v.  Dougherty,  72  Cal. 
232,  I  Am.  St.  Rep.  48,  13  Pac.  144,  the  court  say: 
"It  is  claimed  that  the  judgment  was  not  subject  to 
levy  and  sale  under  execution.  We  think  this  point 
well  taken.  It  was  expressly  so  held  in  McBride  v. 
Fallon,  65  Cal.  301,  4  Pac.  17.  .  .  .  It  is  claimed  that 
the  case  of  McBride  v.  Fallon,  supra,  only  holds 
that  the  sale  could  not  be  made  as  it  was  attempted 


215  PERSONAL   PROPERTY.  §378 

in  that  case,  and  that  the  mode  of  levy  there  was 
different  from  the  mode  pursued  here.  But  that  rul- 
ing is  expressly  placed  on  the  ground  that  the  judg- 
ment is  but  the  evidence  of  the  debt,  and  that  the 
statute  has  made  no  provision  for  attaching  or  levy- 
ing upon  evidences  of  debt,  but  that  it  is  the  debt 
itself,  and  not  the  evidence  of  it,  which  may  be  levied 
upon  by  the  writ  of  attachment,  or  on  execution  in 
like  manner  as  upon  writs  of  attachment."  These 
cases  have  also  been  cited  with  approval  in  the  more 
recent  case  of  Latham  v.  Blake,  yy  Cal.  646,  18  Pac. 
150,  20  Pac.  417. 

§  378.    Indebtedness  evidenced  by  a  promissory 

note.  In  Davis  v.  Mitchell,  34  Cal.  81,  it  was  held 
that  a  sheriff  might,  under  an  execution  and  sale,  levy 
on  a  promissory  note  belonging  to  the  judgment 
debtor,  and  that  the  purchaser  took  it  subject  to  any 
defense  which  the  maker  might  have  had  against  it, 
if  the  payee  had  retained  it.  Whether,  in  such  case, 
the  sale  will  be  valid  without  a  delivery  of  the  note 
to  the  purchaser,  is  discussed  in  the  decision,  but  not 
decided. 

In  the  more  recent  case  of  McBride  v.  Fallon,  65 
Cal.  301,  4  Pac.  17,  (see,  also,  sec.  377,  ante),  the 
court,  commenting  upon  that  case,  said :  "In  that  case 
the  sheriff  had  possession  of  the  note,  and  delivered 
it  to  the  purchaser.  The  court  alluded  to  that  cir- 
cumstance without  passing  upon  its  materiality.  The 
case  arose  and  was  decided  before  the  enactment  of 
the  code,  which,  while  it  does  not  prescribe  a  mode 
of  proceeding  in  such  cases  materially  different  from 
that  pointed  out  by  the  late  Practice  Act,  makes  that 
mode  exclusive.    But,  independently  of  that  circum- 


§§379-3^2       SHERIFFS  AND  CONSTABLES.  2l6 

Stance,  we  could  not,  with  our  present  views,  assent 
to  the  doctrine  of  that  case."  The  code  provisions 
referred  to  will  be  found  in  sections  230  and  372, 
ante. 

§  379.  Certain  corporation  stock  not  subject  to 
execution.  Stock  of  a  corporation,  purchased  by  it 
at  a  sale  for  delinquent  assessments  under  statutory 
provisions,  cannot  be  levied  on  under  an  execution 
against  the  corporation.  {Robinson  v.  Spaulding  G. 
arid  S.  Mfg.  Co.,  72  Cal.  32,  13  Pac.  65.) 

§  380.  Property  held  as  security  not  subject  to 
execution.  A,  being  indebted  to  B,  delivered  to 
him  a  quantity  of  lumber  as  security  for  payment  of 
the  debt,  with  the  understanding  that  B  should  pro- 
ceed and  sell  the  lumber  and  pay  his  debt  out  of  the 
proceeds.  The  lumber  was  afterward  levied  upon 
by  the  defendants  under  an  execution  in  their  favor 
against  A  as  his  property:  Held,  that  the  lumber 
was  not  subject  to  seizure  under  an  execution  against 
A  without  payment,  in  the  first  place,  of  his  indebted- 
ness to  B.  (Sivanston  &  Taylor  v.  Sublette,  1  Cal. 
124.) 

§  381.    Property  of  the  inhabitants  not  liable  for 

county  debts.  The  private  property  of  an  inhabi- 
tant of  a  county  is  not  liable  to  seizure  and  sale  on 
execution  for  the  satisfaction  of  a  judgment  recovered 
against  the  county.  (Emeric  v.  Gilman,  10  Cal.  404, 
70  Am.  Dec.  742.) 

§  382.  Property  in  custody  of  law.  Property  in 
the  custody  of  the  law  is  not  liable  to  seizure,  with- 


217  PERSONAL  PROPERTY.  §§  383-385 

out  an  order  from  the  court  having  charge  thereof. 
{Yuba  County  v.  Adams,  7  Cal.  35.  See,  also,  sec. 
304  ante.) 

§  383.    Equitable  claim  not  subject  to  execution. 

The  equitable  claim  of  a  vendee  for  return  of  part 
payments  made  by  him  on  a  purchase  of  land,  as  to 
w^hich  he  is  in  default,  is  not  subject  to  garnishment 
by  his  judgment  creditor.  {Redondo  Beach  Co.  v. 
Brewer,  loi  Cal.  322,  35  Pac.  896.) 

§  384.    Property  of  wife  not  liable  for  husband's 

debt.  The  property  of  the  wife  cannot  be  taken 
under  an  execution  against  her  husband.  Section 
8  of  article  XX  of  the  constitution  of  California  pro- 
vides that  all  property,  real  and  personal,  owned 
by  either  husband  or  wife  before  marriage,  or  thaf 
acquired  by  either  of  them  afterwards,  by  gift,  devise, 
or  descent,  shall  be  their  separate  property;  and  sec- 
tion 168  of  the  Civil  Code  declares  that  the  earnings 
of  the  wife  are  not  liable  for  the  debts  of  the  hus- 
band. 

§  385.  Gift  from  husband  to  wife.  A  transfer 
of  personal  property  by  gift  from  the  husband  to 
the  wife  creates  separate  property  in  the  wife,  and 
is  valid  as  to  all,  except  existing  creditors  and  bona 
fide  subsequent  purchasers  without  notice.  Such  a 
transfer  cannot  be  attacked  as  fraudulent  and  void 
as  to  subsequent  creditors  in  an  action  for  the  recovery 
of  the  property  by  the  wife  against  an  officer  who 
has  seized  it  under  execution,  unless  he  proves  not 
only  the  issuing  of  the  execution,  the  levy,  and  that 
he  was  a  creditor,  but  also  the  rendition  of  a  judg- 


§385  SHERIFFS  AND  CONSTABLES.  2 18 

ment  upon  his  debt,  and  that  the  execution  was  issued 
upon  the  judgment. 

In  the  case  of  Kane  v.  Desmond,  63  Cal.  464,  "the 
defendant  seized  the  piano  in  controversy  from  the 
possession  of  plaintiff,  by  an  execution  issued  in  favor 
of  A.  L.  Day  v.  Thomas  Kane,  and  sold  it  at  execu- 
tion sale  as  the  property  of  Kane  to  satisfy  the  execu- 
tion. Thomas  Kane  was  the  husband  of  plaintiff. 
On  the  trial  of  the  case  the  court  found  that  the 
plaintiff  was,  at  the  time  of  the  seizure  and  sale,  the 
sole  and  exclusive  owner  of  the  property,  in  her  own 
right,  and  entitled  to  its  possession,  and  that  her  hus- 
band had  no  right  or  title  to  it."  In  deciding  the 
case  the  supreme  court  say: — 

"The  seizure  of  the  property  was  therefore  wrong- 
ful {IF  el  I  man  v.  English,  38  Cal.  583;  Lewis  v. 
Johns,  34  Cal.  629;  Van  Pelt  v.  Little,  14  Cal.  194), 
and  the  plaintiff  was  entitled  to  recover.  But  the 
finding  is  attacked  as  against  the  law  and  the  evidence 
in  this,  that  the  evidence  showed  the  plaintiff's  claim 
of  title  to  the  property  was  founded  on  a  gift  from  her 
husband,  which  was  void  as  to  his  creditors.  But  it 
does  not  appear  that  the  husband  was  indebted  to 
any  one  at  the  time  of  the  gift,  except  to  the  person 
from  whom  he  had  rented  the  piano  under  an  agree- 
ment to  purchase  it  on  the  installment  plan.  Being 
free  from  debt  the  husband  had  the  right  to  transfer 
his  interest  in  the  property  to  his  wife  by  gift,  and 
the  wife,  under  the  law,  had  the  capacity  to  take  and 
hold  it  in  her  own  name  and  right.  {Dow  v.  Gould 
&  Curry  S.  M.  Co.,  31  Cal.  629;  Woods  v.  Whitney, 
42  Cal.  358;  Higgings  v.  Riggings,  46  Cal.  259; 
Peck  V.  Brummagim,  31  Cal.  440,  89  Am.  Dec. 
195.)    The  gift  was  complete,  for  the  evidence  tended 


219  PERSONAL  PROPERTY.  §3^6 

to  show  that  immediately  after  the  husband  had 
rented  the  piano  under  the  agreement  to  purchase, 
he  delivered  it  to  his  wife  as  a  gift,  and  she  accepted 
it,  and  used  it  continuously  as  her  separate  property 
until  the  time  of  the  seizure.  Now,  this  transfer  by 
gift  was  valid  and  effectual  between  herself  and  her 
husband  and  all  the  world,  except  existing  creditors 
and  bona  fide  subsequent  purchasers  without  notice. 
There  was  no  proof  that  Day — the  execution  cred- 
itor— was  a  creditor  of  the  husband  at  the  time  of 
the  gift,  and  there  is  no  presumption  that  the  gift 
was  void  as  to  him  as  a  subsequent  creditor."  {Wells 
V.  Stout,  9  Cal.  479;  Hussey  v.  Castle,  41  Cal.  239.) 

§  386.    Personal  privilege  or  right — How  sold.    A 

mere  personal  privilege,  license,  or  right,  such  as 
a  patent  or  a  seat  in  a  stock  and  exchange  board,  is 
not  property  which  may  be  sold  upon  execution. 
Upon  proceedings  supplementary  to  execution,  how- 
ever, the  debtor  may  be  ordered  to  assign  it  to  a  re- 
ceiver, named  and  appointed  in  the  order,  and  em- 
powered to  sell  the  same  to  satisfy  the  judgment. 
{Habenicht  v.  Lissak,  78  Cal.  351,  20  Pac.  874; 
Pacific  Bank  v.  Robinson,  57  Cal.  520,  40  Am.  Rep. 
120;  Lowenberg  v.  Greenebaum,  99  Cal.  162,  13 
Pac.  794.)  The  following  cases  also  hold  a  seat  in 
a  stock  and  exchange  board  to  be  property  subject 
to  sale  under  execution  proceedings.  {Hyde  v.  Wood, 
94  U.  S.  523,  24  L.  ed.  264;  Powell  v.  Waldron,  89 
A^.  Y.  328,  42  Am.  Rep.  301 ;  In  re  Ketchum,  i  Fed. 
Rep.  840  {N.  Y.);  In  re  Werder  {N.  /.),  15  Fed. 
Rep.  789)  ;  while,  on  the  contrary,  such  a  seat  has 
been  held  to  be  a  mere  personal  privilege  incapable 
of  forced  sale  in  Thompson  v.  Adams,  93  Pa.  St.  55, 


§§  387-389       SHERIFFS  AND  CONSTABLES.  220 

66;  Barclay  v.  Smith,  107  111.  357,  47  Am.  Rep.  437, 
122  Am.  Law  Reg.  435,  and  In  re  Sutherland,  6  Bis- 
sell,  526  (111.),  Fed.  Cas.  No.  13637. 

§  387.    Franchise  not  liable  to  execution  sale.     A 

franchise  is  not  property  capable  of  manual  delivery, 
and  cannot  be  levied  upon  and  sold  under  execution 
unless  there  be  a  statutory  provision  expressly  au- 
thorizing the  sale;  and  when, such  provision  exists, 
the  extent  as  well  as  the  mode  of  levy  and  sale  are 
limited  thereby.  A  statute  authorizing  execution  sale 
of  the  franchise  of  a  corporation  does  not  authorize 
the  sale  of  the  franchise  owned  by  a  private  indi- 
vidual. A  provision  in  a  judgment  requiring  the 
defendant  to  deliver  possession  of  a  franchise  is  not 
susceptible  of  execution.  {Gregory  v.  Blanchard,  98 
Cal.  311,  33  Pac.  199.) 

§  388.    Personal    property    mortgaged,    pledged, 

etc.  When  an  officer  is  directed  to  levy  execution 
upon  personal  property  which,  under  the  California 
code  provision  ( Civ.  Code,  sec.  2955 ) ,  may  be  subject 
to  mortgage  of  record  without  change  of  possession, 
he  should  endeavor  to  ascertain  if  it  has  been  mort- 
gaged, as  in  such  case  it  cannot  be  taken  without 
payment  or  tender  of  the  amount  of  the  mortgage 
debt.  (California.  Civ.  Code,  sees.  2968-2970.) 
The  same  rules  apply  to  levy  of  execution  upon  per- 
sonal property  mortgaged,  pledged,  or  held  for  liens, 
as  in  case  of  levy  of  attachment,  which  subject  is 
treated  in  a  preceding  chapter.    {Sees.  283-289,  ante.) 

§  389.    Claim  by  third  party.       Where    property 
levied  upon  under  execution  to  satisfy  a  judgment 


221  PERSONAL   PROPERTY.  §  390 

for  the  payment  of  money  is  claimed  in  whole  or 
in  part  by  a  person,  corporation,  partnership,  or  as- 
sociation other  than  the  judgment  debtor,  such  claim- 
ant may  give  an  undertaking  as  herein  provided, 
which  undertaking  shall  release  the  property  in  the 
undertaking  described  from  the  lien  and  levy  of  such 
execution.  {California,  Code  Civ.  Proc,  sec.  710 
et  seq.) 

§  390.     Levy   on   partnership   or   joint   property. 

The  interest  of  one  partner  in  the  partnership  chattels 
is  the  subject  of  levy  and  sale  by  the  sheriff  on  an 
execution  against  one  of  the  partners;  and,  in  order 
to  effect  a  sale,  he  may  take  possession  of  the  entire 
property  upon  levy  of  either  execution  or  attachment. 
He  can  only  levy  upon  and  sell  the  interest  and  right 
therein  of  the  partner  sued,  subject  to  the  prior  rights 
and  liens  of  the  other  partners  and  the  joint  creditors 
therein.  And  the  same  is  equally  true  in  case  of  per- 
sonal property  owned  by  two  or  more  persons  in  com- 
mon. (Veach  V.  Adams,  51  Cal.  609;  Clark  v. 
Cushing,  52  Cal.  617;  Robinson  v.  Tevis,  38  Cal. 
61 1  ;  Sheehy  v.  Graves,  58  Cal.  449;  Jones  v.  Thomp- 
son, 12  Cal.  199.)  In  the  case  last  mentioned  the 
court  said: — 

"The  interest  of  one  partner  in  partnership  prop- 
erty is  such  an  estate  under  our  statute  as  may  be 
sold  for  his  debts;  it  is  a  legal  estate  in  chattels.  It 
is  true  that  as  between  the  partners,  the  interest  of 
each  is  only  the  residuum  of  the  property  left  after 
the  settlement  of  the  firm  debts;  and  that  the  rights 
of  the  firm  creditors  and  the  several  partners  are 
paramount  to  the  claims  of  separate  creditors  of  the 
firm.     But  this  interest  of  the  partner  thus  defined 


§  390  SHERIFFS  AND  CONSTABLES.  222 

is  held  by  the  weight  of  authority  subject  to  levy  for 
his  debts.  Story  on  Partnerships,  section  263,  thus 
states  the  rule :  'In  cases  of  this  sort,  therefore,  the  real 
position  of  the  parties,  relatively  to  each  other,  seems 
to  be  this:  The  partnership  property  may  be  taken 
in  execution  upon  a  separate  judgment  and  execution 
against  one  partner;  but  the  sherifif  can  only  seize 
and  sell  the  interest  and  right  of  the  judgment  partner 
therein,  subject  to  the  prior  rights  and  liens  of  the 
other  partners  and  the  joint  creditors  therein.  By 
such  seizure  the  sherifif  acquires  a  special  property 
in  the  goods  seized;  and  the  judgment  creditor  him- 
self may,  and  the  sheriff  also,  vs^ith  the  consent  of  the 
judgment  creditor,  file  a  bill  against  the  other  part- 
ners, for  the  ascertainment  of  the  quantity  of  that 
interest,  before  any  sale  is  actually  made  under  the 
execution.  The  judgment  creditor,  however,  is  not 
bound,  if  he  does  not  choose,  to  wait  until  such  inter- 
est is  so  ascertained,  but  he  may  require  the  sheriff 
to  proceed  to  a  sale,  which  order  the  sheriff  is  bound 
by  law  to  obey.  In  the  event  of  a  sale,  the  purchaser 
at  the  sale  is  substituted  to  the  rights  of  the  execution 
partner,  quoad  the  property  sold,  and  becomes  a 
tenant  in  common  thereof;  and  he  may  file  a  bill, 
or  a  bill  may  be  filed  against  him  by  the  other  part- 
ners, to  ascertain  the  quantity  of  interest  which  he 
has  acquired  by  the  sale.'  " 

In  Waldman  v.  Broder,  10  Cal.  378,  certain  per- 
sonal property  belonging  to  Waldman  and  one 
Franck  had  been  seized  by  Broder,  as  sheriff,  by 
virtue  of  an  execution  in  his  hands  against  the  prop- 
erty of  Franck;  and  Waldman,  who  was  a  co-tenant 
of  Franck,  having  brought  his  action  in  replevin 
against  the  sheriff,  the  district  court  instructed  the 
jury  to  the  effect  that  if  Waldman  and  Franck  were 


223  PERSONAL   PROPERTY.  §391 

owners  of  the  property  as  partners  or  joint  owners 
of  it  in  any  other  capacity,  the  plaintiff,  Waldman, 
could  not  recover;  and  the  jury  having  found  a  ver- 
dict for  the  defendant,  it  was  held  by  the  supreme 
court  that  the  instruction  was  correct,  the  court  ob- 
serving that  "if  the  defendant,  as  sheriff,  levied  on 
the  property  while  it  was  the  joint  property  of  plain- 
tiff and  Franck  (against  the  latter  of  whom  he  had 
an  execution),  this  is  a  justification.  He  had  a  right 
to  levy  on  it,  and  take  it  into  possession  for  the  pur- 
pose of  subjecting  it  to  sale." 

The  case  of  Waldman  v.  Broder  was  afterwards 
cited  and  approved,  the  language  of  Mr.  Chief  Jus- 
tice Field,  who  delivered  the  opinion  of  the  court, 
being  as  follows:  "Vasquez  and  the  plaintiffs  were 
tenants  in  common  of  the  grain,  and  in  attaching  the 
interest  of  one  of  them,  the  sheriff  was  justified  in 
taking  and  detaining  the  possession  of  the  entire 
quantity,  though  he  will  not  be  authorized  to  sell 
under  the  execution  on  the  judgment  which  may  be 
recovered  in  that  action  anything  but  the  undivided 
one-third  interest  of  Vasquez.  The  purchaser  at  the 
sale  and  the  plaintiff  will  then  be  tenants  in  common 
of  the  property."  (Bernal  v.  Hovious,  17  Cal.  541, 
79  Am.  Dec.  147.) 

§  391.    Priority  of  partnership  creditors.      It  has 

been  frequently  decided  by  the  courts  that  the  cred- 
itors of  a  partnership  are  entitled  to  preference  over 
the  creditors  of  the  individual  partners  in  the  pay- 
ment of  their  debts  out  of  the  partnership  property, 
or  moneys  arising  therefrom,  without  regard  to  the 
priority  of  attachment  liens.  (Chase  v.  Steel,  9  Cal. 
64;  Conroy  v.  Woods,  13  Cal.  626,  JT,  Am.  Dec.  605; 


§391  SHERIFFS  AND  CONSTABLES.  224 

Dupuy  V.  Leavenworth,  17  Cal.  262 ;  Burpee  v.  Bunn, 
22  Cal.  194;  Bullock  V.  Hubbard,  23  C«/.  501,  83 
/fm.  Z)^<:.  130;  Commercial  Bank  v.  Mitchell,  58 
C«/.  42.)  And  the  same  principle  applies  as  be- 
tween the  creditors  of  several  partnership  firms. 

In  the  case  of  Bullock  v.  Hubbard,  above  cited, 
Bishop  &  Long  were  partners.  Bishop  &  Long  as 
a  partnership  was  also  a  member  of  two  other  firms — 
Bishop,  Long  &  Steuart,  and  Bishop,  Long,  Siefert 
&  Dodsworth.  The  firms  all  failed,  and  their  prop- 
erty was  attached  by  creditors.  The  creditors  of 
Bishop,  Long  &  Steuart,  and  Bishop,  Long,  Siefert 
&  Dodsworth  obtained  the  first  attachments,  and 
placed  them  in  the  hands  of  the  sheriff,  before  the 
creditors  of  Bishop  &  Long  placed  theirs  in  his  hands. 
The  sheriff  levied  all  the  writs  on  the  property  in 
the  order  in  which  they  were  placed  in  his  hands. 
The  sheriff  had  in  his  hands  a  sum  of  money  received 
from  the  sale  of  the  property  of  Bishop  &  Long,  to 
apply  on  the  executions  issued  on  judgments  rendered 
in  the  actions.  None  of  the  others,  as  partnership 
firms,  had  any  interest  in  this  money.  The  sheriff 
commenced  an  action  requiring  the  creditors  to  liti- 
gate their  respective  rights  to  the  money.  The  court 
below  held,  and  the  supreme  court  affirmed  the  judg- 
ment, that  the  creditors  of  the  firm  of  Bishop  &  Long 
were  entitled  to  the  money  realized  from  the  sale  in 
the  order  of  the  priority  of  their  several  attachment 
liens. 

In  Burpee  v.  Bunn,  22  Cal.  194,  a  separate  cred- 
itor of  one  of  several  partners  levied  an  attachment 
for  his  debt  upon  the  partnership  property,  and  after- 
wards made  an  agreement  with  a  trustee,  to  whom 
his  debtor  had  conveyed  the  property,  by  which  the 


225  PERSONAL  PROPERTY.  §  39 1 

latter  stipulated  to  pay  the  attachment  debt  from  the 
proceeds  of  a  sale  of  the  property,  after  paying  ex- 
penses and  prior  claims.  Held,  that  neither  by  his 
attachment  nor  by  the  agreement,  did  the  separate 
creditor  acquire  any  title  to  or  lien  upon  the  property 
as  against  the  superior  equity  of  a  subsequently  at- 
taching creditor  of  the  partnership. 

Where  one  partner  buys  out  his  co-partners,  agree- 
ing to  pay  the  debts  of  the  firm,  the  partnership  prop- 
erty remains  bound  for  firm  debts,  just  as  before  the 
sale.  The  lien  of  firm  creditors  attaching  must  be 
preferred  to  the  lien  of  an  individual  creditor  of  the 
remaining  partner  attaching  first.  A  lien  by  attach- 
ment enables  a  creditor  to  file  a  creditor's  bill,  with- 
out waiting  for  judgment  and  execution.  Partners 
may  make  a  bona  fide  sale  of  their  property  any  time 
before  their  creditors  acquire  a  lien;  but  such  sale 
cannot  include  a  sale  directly  or  indirectly  to  one  of 
the  partners,  with  a  stipulation  that  he  will  pay  the 
firm  debts,  there  having  been  no  credit  given  by  the 
individual  creditor  on  the  strength  of  an  apparent 
sole  ownership  in  the  vendee.  The  fact  that  an 
individual  creditor  obtains  judgment,  issues  execu- 
tion and  levies  on  firm  property,  gives  him  no  right 
to  the  property  as  against  firm  creditors  who  have 
not  yet  obtained  judgment.  In  such  cases  of  conflict 
between  the  individual  and  firm  creditors,  equity  has 
jurisdiction.  No  action  lies  against  the  sheriff^  for 
levying  the  execution  of  the  individual  creditor,  and 
a  sale  to  difi^erent  purchasers  might  result  in  a  loss 
of  the  property.  {Conroy  v.  Woods,  13  Cal.  626,  73 
Am.  Dec.  605.) 

In  Commercial  Bank  v.  Mitchell,  58  Cal.  42,  an 
action  against  the  members  of  a  partnership,  upon  a 


§  392  SHERIFFS  AND  CONSTABLES.  226 

joint  and  several  promissory  note,  signed  by  them  in- 
dividually, but  not  with  the  firm  name,  attachment 
was  issued  and  levied  upon  the  interests  of  defend- 
ants in  the  partnership  property,  upon  which  an 
attachment  previously  had  been  and  others  were 
subsequently  levied  in  actions  against  the  firm.  Sub- 
sequently, the  plaintiff  amended  his  complaint  by 
alleging  the  partnership  of  the  defendants,  and  that 
the  note  was  a  partnership  debt;  but  the  action  still 
ran  against  the  defendants  as  individuals,  and  judg- 
ment was  entered  against  them  in  that  capacity. 
Judgments  having  been  entered  in  all  the  cases,  the 
property  was  sold  under  execution  in  one  of  the  cases 
against  the  firm,  and  the  proceeds  applied  in  satis- 
faction of  that  execution  and  another  in  a  similar 
case:  Held,  that  the  money  was  properly  applied  on 
the  executions  against  the  firm  in  preference  to  those 
of  the  plaintiff. 

§  392.    Harvested  grain  crop — Different  owners. 

Some  of  the  questions  relating  to  the  duties  of  sheriffs 
in  levying  upon  a  harvested  crop  of  grain,  part  of 
which  is  partnership  property,  and  a  part  belonging 
to  a  stranger  to  the  writ,  and  upon  a  portion  of  which 
there  is  a  chattel  mortgage,  are  plainly  elucidated  in 
the  opinion  of  the  court  in  the  case  of  Sheehy  v. 
Graves,  58  Cal.  449.  In  that  case  Finch  and  Shinn 
were  partners  in  a  crop,  and  the  latter  mortgaged  his 
interest  and  took  possession  of  the  whole  crop.  After- 
wards, in  an  action  by  the  plaintiff  against  Finch  & 
Shinn,  an  attachment  was  levied  upon  the  crop  by 
the  defendant  as  sheriff.  In  an  action  against  the 
defendant  for  failure  to  make  the  money  on  an  exe- 
cution out  of  the  property  attached,  the  court  found 


227  PERSONAL  PROPERTY.  §  392 

that  it  was  agreed  between  the  plaintiff,  defendant, 
and  mortgagee  that  the  latter  should  thresh  and  sack 
the  grain,  and  that  whatever  should  belong  to  the 
Shinn  interest  should  be  delivered  to  the  defendant 
upon  the  plaintiff's  attachment.  The  mortgagee 
threshed  and  sold  the  grain  and  paid  to  the  defend- 
ant three  hundred  and  nineteen  dollars  as  the  part 
belonging  to  Shinn,  and  this  was  applied  on  the  exe- 
cution, leaving  a  balance  still  due.  Upon  an  appeal 
from  a  judgment  for  the  defendant:  Held,  that  under 
the  facts  found  it  was  the  duty  of  the  sheriff  to  take 
possession  of  the  Shinn  interest  after  it  was  threshed 
and  sacked,  and  to  sell  it  in  the  manner  required  by 
law;  and  that  he  had  no  right  to  sell  at  private  sale, 
or  authorized  another  to  do  so ;  and  that  therefore  the 
decision  was  against  law,  and  the  judgment  should 
be  reversed  upon  the  findings. 

In  deciding  the  case  the  court  say:  "The  case  de- 
mands some  other  observations.  If  the  crop  raised 
on  the  Sheehy  place  was  partnership  property,  what 
right  had  Jackson  to  take  possession  of  it  to  the  ex- 
clusion of  Shinn,  the  partner  from  whom  he  had  no 
mortgage?  As  against  Jackson,  who  had  a  mortgage 
only  of  the  interest  of  Finch,  which  interest  could 
only  be  determined  after  a  settlement  of  the  accounts 
of  the  partnership,  where  it  might  have  turned  out 
that  Shinn  was  entitled  to  the  whole  {Civ.  Code,  sec. 
2405),  Shinn  had  a  right  to  the  possession,  and  under 
these  circumstances  it  was  the  duty  of  the  sheriff, 
having  in  his  hands  the  execution  against  both  part- 
ners, to  take  possession  of  all  the  grain  on  the  Sheehy 
place.  Shinn  could  not  be  deprived  of  the  possession 
of  the  whole  by  the  assignment  by  his  partner  of  his 
interest.     The  sheriff  neglected  his  dutv  and  was 


§  393  SHERIFFS  AND  CONSTABLES.  228 

guilty  of  a  breach  of  his  bond  as  set  forth  in  the  com- 
plaint in  not  taking  possession  of  the  whole  grain, 
at  least  on  the  Sheehy  place,  as  he  was  ordered 
to  do." 

§  393-  Partnership — Sale  or  dissolution.  Where 
one  partner  bona  fide  sold  the  partnership  property 
to  satisfy  his  individual  indebtedness,  and  in  an  action 
of  replevin  by  the  purchaser  against  a  creditor  of 
the  firm  who  has  attached  the  property,  after  the  sale 
and  delivery,  as  the  firm  property,  and  for  a  firm 
debt,  the  court  properly  rendered  a  judgment  for  the 
purchaser;  and  it  will  be  presumed  in  support  of 
the  judgment  that  the  court  below  found  it  as  a  fact 
that  the  other  partner  consented  to  and  authorized 
the  sale.  So  long  as  the  legal  title  of  the  partnership 
property  remains  in  the  co-partners,  a  creditor  of  the 
firm  may  pursue  his  remedy  against  it  in  an  action 
at  law  in  the  same  manner  as  against  an  individual 
debtor.  But  if  the  legal  title  has  been  conveyed  to 
a  third  person  bona  fide,  the  creditor  can  pursue  the 
property  only  by  a  bill  in  equity  to  marshal  the  assets 
and  enforce  his  equitable  lien.  (Stokes  v.  Stevens, 
40  Cal.  391.) 

The  filing  of  a  bill  by  one  partner  against  his  co- 
partners for  a  dissolution  and  account,  and  praying 
for  an  injunction  and  receiver,  and  an  appointment 
of  a  receiver  by  the  court,  does  not  prevent  a  creditor 
from  proceeding  by  attachment,  and  gaining  a  prior- 
ity over  other  creditors,  until  a  final  decree  of  dis- 
solution and  order  of  distribution.  Funds  in  the 
hands  of  a  receiver,  in  a  suit  for  dissolution,  are  there- 
fore subject  to  levy  at  any  time  before  a  final  decree 
of  dissolution  and  distribution.  (Adams  v.  Woods, 
9  Cal.  24.) 


229  PERSONAL  PROPERTY.  §  394 

§  394.  Release  of  execution.  Upon  order  of  the 
plaintiff's  attorney,  or  upon  payment  to  the  officer  of 
the  amount  due  on  the  execution,  including  costs  ac- 
crued, the  sheriff  should  release  the  property. 

When  property  has  been  seized  upon  execution 
and  an  appeal  has  been  taken  and  the  stay-bond  filed, 
which  by  statute  "stays  all  further  proceedings  and 
releases  property  levied  upon,"  the  sheriff  should 
release  at  once  without  waiting  for  justification  of 
sureties  or  waiver  of  the  same.  [Sam  Yuen  v.  Mc- 
Mann,  99  Cal.  497,  34  Pac.  80.) 

If,  after  an  execution  has  been  levied  on  sufficient 
property  to  satisfy  the  judgment,  the  court  orders 
that  the  judgment  be  not  enforced,  the  order  releases 
the  levy,  and  it  will  not  have  the  effect  of  satisfying 
the  judgment.     {Mulford  v.  Estudillo,  32  Cal.  132.) 


CHAPTER  XV. 

EXECUTIONS — REAL  PROPERTY. 


§  395.     Levy  upon  real  property. 


§396 
§397 
§398 

§399 
§400 

§  401 
§402 


Real  property — Interests  subject  to  sale. 

Equity  of  redemption  subject  to  sale. 

Interest  of  purchaser  at  judicial  sale  subject  to  sale. 

Interest  of  grantor  after  trust-deed  made. 

Mining  claim  liable  to  execution. 

When  owner  is  estopped  from  asserting  title. 

Levy  upon  larger  tract  including  debtor's  land. 


§  395.  Levy  upon  real  property.  In  levying 
upon  real  property,  the  same  method  is  followed  as 
under  the  writ  of  attachment.  Section  688  of  the 
California  Code  of  Civil  Procedure  provides  that 
all  property,  "both  real  and  personal,  or  any  interest 
in  either  real  or  personal  property,  and  all  other 
property  not  capable  of  manual  delivery,  may  be 
levied  upon  or  released  from  levy  in  like  manner  as 
like  propert}^  may  be  attached  or  released  from  at- 
tachment." 

§  396.    Real  property  —  Interests  subject  to  sale. 

As  the  term  "real  property"  is  coextensive  with  lands, 
tenements,  and  hereditaments  (California.  Civ. 
Code,  sec.  14,  subd.  5) ,  and  the  term  "land"  embraces 
all  titles,  legal  or  equitable,  perfect  or  imperfect,  in- 
cluding such  rights  as  lie  in  contract — executory  as 
well  as  executed — any  interest  whatever  in  land,  legal 
or  equitable,  is  subject  to  attachment  or  execution 
levy  and  sale.     {Fish  v.  Foiv/ie,  58  Cal.  373.) 


231  REAL   PROPERTY.  §§397,398 

The  interest  of  a  person  who  holds  a  contract  to 
purchase  land  may  therefore  be  levied  upon  and  sold. 
The  officer  levies  upon  the  interest  of  the  debtor  in 
the  property.  If  it  turn  out  that  the  debtor  had  no 
interest  therein,  no  property  is  acquired  thereby. 
The  notice  of  levy,  notice  of  sale,  the  certificate  of 
sale  given  to  the  purchaser,  and  the  deed  which  fol- 
lows after  the  expiration  of  the  time  for  redemption, 
should  recite  that  it  is  the  interest  of  the  debtor  which 
is  afifected  by  the  several  proceedings.  (See,  also, 
sec.  585,  post.) 

§  397.    Equity  of  redemption  subject  to  sale.    The 

interest  of  a  judgment  debtor  whose  land  has  been 
sold  at  execution  sale,  the  time  for  redemption  not 
having  expired  may  be  subjected  to  execution  sale. 
(McMillan  v.  Richards,  9  Cal.  365,  70  Am.  Dec. 

655-) 

§  398.  Interest  of  purchaser  at  judicial  sale  sub- 
ject to  sale.  "After  the  expiration  of  the  time  of 
redemption,  and  before  execution  of  the  sheriff's 
deed,  the  purchaser  has  an  estate  which  is  subject  to 
be  seized  and  sold.  Upon  the  same  principle,  we  can 
perceive  no  good  reason  why  the  interest  of  the  pur- 
chaser may  not  also  be  seized  and  sold  before  the 
expiration  of  the  time  for  redemption."  (Page  v. 
Rogers,  31  Cal.  305.) 

§  399.    Interest  of  grantor  after  trust-deed  made. 

If  a  deed  of  trust  leaves  an  interest  in  the  trust  prop- 
erty in  the  grantor,  such  interest  may  be  sold  on  an 
execution  against  him.  (Kennedy  v.  Niinan,  52  Cal. 
326.) 


§§  400-402       SHERIFFS  AND  CONSTABLES.  232 

§  400.     Mining   claim   liable   to   execution.     The 

interest  of  a  miner  in  his  mining  claim  is  property, 
and  may  be  taken  and  sold  under  execution.  (Mc- 
Keon  V.  Bisbee,  9  Cal.  137,  70  Am.  Dec.  642.) 

§  401.    When  owner  is  estopped  from  asserting 

title.  It  is  a  well-settled  rule  of  all  courts  of  equity 
that  the  owner  of  land  who  stands  by  and  sees  another 
sell  it  without  making  known  his  claim  is  forever 
estopped  from  setting  up  his  title  against  an  innocent 
purchaser.  In  strict  analogy  to  this  rule  it  is  also 
a  familiar  principle  that  one  who  knowingly  and 
silently  permits  another  to  expend  money  on  land, 
under  a  mistaken  impression  that  he  has  title,  will  not 
be  permitted  to  set  up  his  right.  (Godeffroy  v.  Cald- 
well, 2  Cal.  492,  56  Am.  Dec.  360.) 

§  402.    Levy  upon  larger  tract  including  debtor^s 

land.  When  the  judgment  debtor  has  or  claims  an 
interest  in  only  a  small,  well-defined  parcel  of  a  much 
larger  tract  of  land,  it  is  extremely  irregular,  to  say 
the  least,  to  levy  the  execution  on  his  interest  in  the 
general  tract  instead  of  the  particular  parcel  he 
claims.  Upon  an  irregular  levy  of  this  character, 
and  a  threatened  sale  under  it,  the  owner  in  pos- 
session of  the  larger  tract  might  perhaps  be  entitled 
to  enjoin  the  sale,  except  of  the  smaller  parcel 
claimed  by  the  judgment  debtor.  (Logan  v.  Hale, 
42  Cal.  645.) 


CHAPTER  XVI. 

EXEMPTIONS   FROM   EXECUTION. 

§  403.     Exemptions,  generally. 

§  404.     Personal  property  exemptions. 

§  405.  Liberal  construction  of  statute. 

§  406.  Burden  of  proof. 

§  407.  Exempt  property  may  not  be  attached. 

§  408.  Difficulties  in  determining  exemptions. 

§  409.  Claim  by  teamster. 

§  410.  Teamster  defined. 

§411.  Laborer  defined. 

§  412.  Teamster  or  laborer. 

§  413.  Exemption  of  stallion. 

§  414.  Tools  and  implements  of  trade — Construction. 

§  415.  Steam  thresher — When  not  exempt. 

§  416.  Threshing  outfit. 

§  417.  Provisions  for  family  use. 

§  418.  Salaries  of  officers,  etc. 

§  419.  Waiver  of  exemption  by  officer. 

§  420.  Interest  in  common. 

§  421.  Exemption  a  personal  right. 

§  422.  Debtor  must  claim  within  a  reasonable  time. 

§  423.  Unreasonable  delay  in  claiming  exemption. 

§  424.  What  constitutes  a  reasonable  time. 

§  425.  Sale  after  claim  made. 

§  426.  Claimant  must  notify  officer. 

§  427.  Claim  of  exemption — How  made. 

§  428.  Joint  claim — Eflfect. 

§  429.  Priority  of  homestead  over  mortgage. 

§  430.  Grain  on  homestead  land. 

§  431.  Joint  ownership  in  the  property  claimed. 

§  432.  Partial  use  of  building  for  hotel. 

§  433.  How  a  homestead  may  be  levied  upon. 

§  434.  Homestead  insurance  exempt. 

§  435.  When  judgment  is  not  a  lien. 


§  403  SHERIFFS  AND  CONSTABLES.  234 

§  436.  Judgment  no  lien  upon  homestead. 

§  437.  Judgment  after  filing  of  homestead. 

§  438.  Levy  on  homestead  void. 

§  439.  Cloud  on  title  of  homestead. 

§  440.  When  sale  may  be  enjoined. 

§  441.  Purchase  money  lien — Right  of  assignee. 

§  442.  Exemption  claims  in  partnership. 

§  443.  Horse,  saddle,  and  bridle. 

§  444.  Lumber  and  shingle  machines. 

§  445.  Exempt  seed  grain. 

§  446.  Watchmakers'  tools. 

§  447.  Lens  of  photographer. 

§  448.  Safes. 

§  449.  Peddlers. 

§  450.  Printers'  tools. 

§451.  Watch  repairers. 

§  452.  Turning  lathe. 

§  453.  Cheese  presses. 

§  454.  Lisurance  agents  and  searchers. 

§  455.  Milliners'  exemptions. 

§  456.  Tailors'  exemptions. 

§  457.  Double  exemptions. 

§  458.  Weavers'  looms. 

§  459.  Barbers'  chairs. 

§  460.  Commercial  firms. 

§  461.  Shoemakers'  machines. 

§  462.  When  a  stallion  is  not  exempt. 

§  463.  Multiplying  employments. 

§  464.  Exemption  of  officers'  salary  after  expiration  of  his 

term. 

§  465.  Cloth  for  clothing  exempt. 

§  466.  A  watch  is  wearing  apparel. 

§  467.  Goods   not   exempt    for   money   loaned    for   purchase 

price. 

§  403.  Exemptions  generally.  In  all  the  states 
and  territories  to  which  this  work  is  particularly  ap- 
plicable, provision  is  made  for  the  exemption  from 
forced  sale  of  a  certain  amount  of  personal  property, 


235  EXEMPTIONS   FROM   EXECUTION.      §§  404-406 

consisting  substantially  of  those  articles  without 
which  the  debtor  would  be  unable  to  live  and  earn 
necessary  support  for  himself  and  family.  Statutory 
provision  is  also  usually  made  for  the  exemption  of 
real  property  to  a  certain  amount  for  the  use  of  the 
debtor  as  a  home. 

Under  the  Trespass  Law  of  1907  (Stats.  1907,  p. 
999)  no  animal  is  exempt  from  attachment  or  exe- 
cution, levy,  and  sale  to  satisfy  a  judgment  that  may 
be  rendered  against  the  owner  of  such  animal  for 
trespass  committed  by  such  animal. 

§  404.  Personal  property  exemptions.  Section 
690  of  the  Code  of  Civil  Procedure  designates  all  the 
personal  property  that  is  exempt  from  execution. 
No  article,  however,  mentioned  therein  is  exempt 
from  execution  issued  upon  a  judgment  recovered 
for  its  price,  or  upon  a  judgment  of  foreclosure  of 
a  mortgage  or  other  lien  thereon.  (California.  Stats. 
1907,  p.  882.) 

§  405.     Liberal     construction     of     statute.      The 

courts  uniformly  give  to  the  statute  of  exemptions 
a  liberal  construction,  as  intended  to  enable  the 
debtor  to  follow  his  vocation  and  earn  a  support  for 
himself  and  family.  (In  re  McManus,  Insolvent, 
87  Cal.  292,  22  Am.  St.  Rep.  250,  25  Pac.  413,  10 
L.  R.  A.  567.) 

§  406.  Burden  of  proof.  The  burden  is  on  him 
who  claims  exemption  of  property  under  the  statute 
to  prove  it.  (Murphy  v.  Harris,  jj  Cal.  194,  19 
Pac.  377.) 


§§  407,  4o8       SHERIFFS  AND  CONSTABLES.  236 

§  407,    Exempt   property   may   not   be   attached. 

In  all  these  cases  in  which  the  property  is  declared 
to  be  "exempt  from  execution  and  forced  sale,"  it 
is  of  course  exempt  also  from  attachment,  the  only 
purpose  of  the  latter  writ  being  to  hold  property  in 
statu  quo  until  judgment  and  execution  can  be  had. 
{See,  also,  sec.  315,  ante.) 

§  408.     Difficulties    in    determining    exemptions. 

Between  the  desire  of  the  plaintiff  to  secure  his  debt, 
and  the  defendant  to  hold  as  much  of  his  property 
as  he  can,  the  officer  often  finds  himself  perplexed 
as  to  how  he  can  faithfully  discharge  his  duty  and  do 
justice  to  both  contestants.  He  should  exercise  the 
same  sound  discretion,  as  well  as  diligence,  in  secur- 
ing property  under  the  writ,  as  though  he  were  in 
pursuit  of  a  claim  of  his  own. 

In  California  section  690  of  the  Code  of  Civil 
Procedure  (sec.  404,  ante)  declares  what  personal 
property  shall  be  exempt  from  execution.  In  speci- 
fying the  different  kinds  of  property,  it  does  not  in 
every  instance  state  the  quantity  that  shall  be  exempt, 
and  hence  officers  sometimes  find  themselves  in  a 
dilemma  as  to  the  limit  to  which  they  are  bound 
to  go.  The  law  allows  the  judgment  debtor  to  retain 
"necessary  household,  table  and  kitchen  furniture." 
When  certain  household  furniture  was  claimed  as 
exempt  from  execution  (Haswell  v.  Parsons,  15  Cal. 
266,  76  Am.  Dec.  480)  the  fact  that  the  number  of 
beds  claimed — six  in  all — was  greater  than  was  re- 
quired for  the  immediate  and  constant  use  of  the 
family  was  held  to  be  no  objection.  Plaintiff  was  a 
farmer,  householder,  and  head  of  a  family,  having 
a  wife  and  three  children  dwelling  with  him.     The 


237  EXEMPTIONS  FROM   EXECUTIONS.  §  408 

court  held  that  while  it  was  possible  that  a  less  num- 
ber of  beds  would  have  accommodated  the  plaintiff 
and  his  wife  and  children,  yet  it  would  be  a  very 
narrow  construction  of  the  statute  to  limit  the  ex- 
emption to  the  number  required  for  immediate  and 
constant  use. 

By  the  first  and  second  subdivisions  of  section  690 
of  the  Code  of  Civil  Procedure  there  is  exempted 
certain  household  furniture,  wearing  apparel,  and 
provisions  for  three  months  for  the  use  of  the  fam- 
ily. This  exemption  is  for  the  benefit  of  all  classes 
of  judgment  debtors,  whatsoever  may  be  their  voca- 
tions, because  these  articles  are  essential  to  all  fam- 
ilies. By  reference  to  the  last  sentence  of  subdivision 
20  of  section  690  it  will  be  seen  that  household  fur- 
niture and  any  other  species  of  property  mentioned 
in  that  section  may  be  levied  upon  under  execution 
(and  attachment)  issued  for  its  price  or  purchase 
money  thereof. 

The  next  succeeding  four  subdivisions  of  the  sec- 
tion were  intended  to  exempt  such  articles  as  were 
used  by  the  judgment  debtor  in  earning  a  support  for 
himself  and  family  in  his  particular  vocation.  Hence 
the  third  subdivision  exempts  the  farming  imple- 
ments of  a  farmer  and  two  oxen  or  two  horses  or  two 
mules  and  their  harness,  one  cart  or  wagon,  and  food 
for  such  oxen,  horses,  or  mules  for  one  month,  and 
all  seed,  grain,  or  vegetables  actually  provided,  re- 
served, or  on  hand  for  the  purpose  of  planting  or 
sowing  at  any  time  within  the  ensuing  six  months, 
not  exceeding  in  value  the  sum  of  two  hundred  dol- 
lars, etc.  This  exemption  is  to  enable  the  judgment 
debtor  to  earn  a  support  by  farming,  secures  to  him 
the  means  appropriate  to  that  end,  and  is  intended  to 


§  4o8  SHERIFFS  AND  CONSTABLES.  238 

apply  only  to  oxen,  horses,  or  mules  suitable  and  in- 
tended for  the  ordinary  work  conducted  on  a  farm. 
(Robert  v.  Adams,  38  Cal.  383,  99  Am.  Dec.  413.) 

The  provisions  of  the  third  subdivision  of  section 
690  of  the  Code  of  Civil  Procedure,  with  the  excep- 
tion of  that  exempting  a  horse  and  vehicle,  relate 
exclusively  to  exemptions  in  favor  of  judgment  debt- 
ors who  are  farmers.  (Robert  v.  Adams,  38  Cal. 
383,  99  Am.  Dec.  413;  Murphy  v.  Harris,  77  Cal. 
194,  i()Pac.  277-) 

The  fourth  subdivision  exempts  the  tools  or  im- 
plements of  a  mechanic  or  artisan  necessary  to  carry 
on  his  trade,  the  notarial  seal,  records,  and  office 
furniture  of  a  notary  public,  the  instruments  and 
chests  of  a  surgeon,  physician,  surveyor,  or  dentist, 
necessary  to  the  exercise  of  their  profession,  with 
their  professional  libraries  and  necessary  office  fur- 
niture, etc. 

The  fifth  subdivision  exempts  the  cabin  of  a  miner, 
his  sluices,  pipes,  hose,  windlass,  derrick,  cars,  pump, 
tools,  implements,  and  appliances  necessary  for  carry- 
ing on  any  mining  operations,  etc.  And  here  comes 
in  the  question  as  to  what  appliances  may  be  exempt 
from  execution  as  fixtures  belonging  to  the  realty, 
and  not  removable  as  personal  property,  and  this 
question  is  treated  upon  elsewhere  in  this  volume 
under  the  title  of  "Fixtures."     (Chap.  XXI,  post.) 

The  sixth  subdivision  exempts  two  horses,  two 
oxen,  or  two  mules,  and  their  harness,  and  one  cart 
or  wagon,  one  dray  or  truck,  one  coupe,  one  hack 
or  carriage  for  one  or  two  horses  by  the  use  of  which 
they  "or  other  laborer"  habitually  earns  his  living. 

If  an  officer  go  upon  a  ranch  or  farm  to  levy  upon 
the  personal  property  of  the  debtor  and  find  there, 


239  EXEMPTIONS  FROM   EXECUTION.  §  408 

of  horses  or  other  animals  attachable,  only  the  num- 
ber that  is  specified  by  statute  as  exempt  from  exe- 
cution, he  will  not  be  justified  in  refraining  from 
levying  upon  them  for  that  reason  alone,  for  it  may 
be  that  the  debtor  may  have  other  property  of  a 
similar  kind  elsewhere.  If  it  is  in  the  officer's  knowl- 
edge that  the  debtor  has  no  other  animals  of  that  kind 
elsewhere,  a  levy  upon  those  present  that  are  by  law 
exempt  would  be  a  superfluous  proceeding.  But  if 
he  has  been  directed  by  the  plaintifif  or  his  attorney 
to  make  the  levy  he  should  do  so  if  they  or  either  of 
them  have  reason  to  believe  the  debtor  is  not  entitled 
to  the  exemption.  He  may  require  an  indemnity 
bond  if  there  be  any  doubt  in  his  mind,  and  he  will 
be  protected  by  the  bond. 

Where  the  debtor  has  several  horses,  and  two  are 
exempt  from  execution,  he  may  elect  which  shall 
be  exempt;  but  if  he  has  some  not  in  the  jurisdiction 
of  the  officer,  and  so  beyond  the  reach  of  the  execu- 
tion, and  there  is  only  one  within  the  reach  of  the 
execution,  he  cannot  defeat  the  creditor's  levy  on 
that  one  by  electing  to  keep  it.  Such  a  course  would 
be  using  the  statute,  which  was  intended  for  benefi- 
cent purposes,  as  a  means  of  evasion  and  fraud. 

§  409.  Claim  by  teamster.  Where  two  mules 
are  claimed  as  exempt  from  forced  sale  on  execution, 
it  must  be  shown  that  the  party  claiming  the  mules 
habitually  earned  his  living  by  the  use  of  the  ani- 
mals in  question,  or  that  he  is  one  of  the  persons 
mentioned  in  the  statute.  (Calhoun  v.  Knight,  10 
Cal.  394.) 

The  wagon-sheet  and  driving-lines  of  a  teamster 
are  exempt  "when  useful  and  convenient  to  use"  with 


§§410-412       SHERIFFS  AND  CONSTABLES.  24O 

the  horses  expressly  exempted  by  the  statute.  (In  re 
Bowman,  83  Cal.  153,  23  Pac.  375.  See,  also,  sees. 
409,  410,  412,  post.) 

§  410.  Teamster  defined.  In  the  sense  of  the 
statute  of  exemptions  one  is  a  "teamster"  who  is  en- 
gaged with  his  own  team  or  teams  in  the  business  of 
teaming,  viz.,  in  the  business  of  hauling  freight  for 
others  for  a  consideration,  by  which  he  habitually 
supports  himself  and  family,  if  he  has  one.  While 
a  teamster  need  not  drive  his  team  in  person,  yet  he 
must  be  personally  engaged  in  the  business  of  team- 
ing habitually,  and  for  the  purpose  of  making  a 
living  by  that  business.  If  a  carpenter  or  other  me- 
chanic who  occupies  his  time  in  labor  at  his  trade 
purchase  a  team  or  teams  and  also  carries  on  the 
business  of  teaming  by  the  employment  of  others 
he  does  not  thereby  become  a  "teamster"  in  the  sense 
of  the  statute.  (Brusie  v.  Griffith,  34  Cal.  302,  91 
Am.  Dec.  695.) 

§411.  Laborer  defined.  By  "other  laborer,"  as 
used  in  the  sixth  subdivision  of  section  690  of  the 
Code  of  Civil  Procedure,  is  meant  one  who  labors 
by  and  with  the  aid  of  his  team,  and  not  by  the  aid  of 
a  pick  and  shovel,  or  the  implements  of  other  trade 
or  vocation.  (Brusie  v.  Griffith,  34  Cal.  302,  91  Am. 
Dec.  695.) 

§412.  Teamster  or  laborer.  Where  B,  who 
claimed  two  horses,  etc.,  as  exempt,  was  a  clerk  in 
a  store  at  a  stated  salary,  and  had  purchased  said 
horses,  etc.,  mainly  to  furnish  employment  for  his 
son,  who  was  seventeen  years  old,   and  by  whom 


241  EXEMPTIONS   FROM   EXECUTION.  §412 

exclusively  the  team  was  used  habitually  in  hauling 
freight  for  said  store  and  for  other  parties,  and  in 
delivering  goods  from  said  store  to  customers,  all 
of  which  was  done  for  the  benefit  of  B  and  his 
family:  Held,  that  B  was  neither  a  teamster  nor 
other  laborer  in  the  statutory  sense.  (Brusie  v.  Grif- 
fith, 34  Cal.  302,  91  Am.  Dec.  695.) 

In  the  case  of  Dove  v.  Nunan,  62  Cal.  399,  the 
property  in  controversy  consisted  of  two  horses  and  a 
wagon,  which  were  claimed  by  the  plaintiffs  as  ex- 
empt from  execution.  The  court  said:  "The  court 
below  found  that  'the  plaintiffs  were  and  are  a  firm 
doing  business  as  coal  dealers.  .  .  .  That  the  plain- 
tiffs used  the  property  sued  for  as  teamsters.  That 
they  hauled  coal  and  other  commodities  for  others, 
for  hire  and  pay,  and  received  money  therefor,  all 
of  which  was  expended  in  the  support  of  plaintiffs 
and  their  families,  all  of  whom  resided  in  the  same 
house  and  ate  at  the  same  table.  That  as  coal  deal- 
ers, and  for  the  purpose  of  delivering  coal  at  retail 
and  in  small  quantities,  the  plaintiffs  had  and  owned 
a  smaller  cart,  truck  or  wagon,  and  one  other  horse. 
That  the  only  use  which  the  plaintiffs  made  of  the 
wagon  and  horses — the  subject  of  this  suit — for  them- 
selves, other  than  as  teamsters  for  pay,  was  in  haul- 
ing coal  and  wood  from  plaintiffs'  coal-yard,  and 
other  coal  and  wood-yards,  to  the  place  where  the 
plaintiffs  retailed  the  same,  as  above  found  herein.' 

"The  fact  that  the  plaintiffs  used  the  horses  and 
wagon  in  question  as  teamsters  for  hire,  and  that  they 
expended  the  money  thus  received  in  the  support  of 
themselves  and  their  families,  did  not  exempt  the 
property  from  execution.  In  order  to  entitle  a  party 
to  claim  as  exempt  from  execution  tw^o  horses,  etc., 


§413  SHERIFFS  AND  CONSTABLES.  242 

under  the  sixth  subdivision  of  section  690,  he  must 
show  that  he  is  a  cartman,  drayman,  truckman,  huck- 
ster, peddler,  teamster,  or  other  laborer,  and  that  he 
habitually  earns  his  living  by  the  use  of  such  horses, 
etc."  (Brusie  v.  Griffith,  34  Cal.  302,  91  Am.  Dec. 
695.     See,  also,  sees.  408-410,  ante.) 

§413.  Exemption  of  stallion.  In  the  case  of 
McCue  V.  Tunstead,  65  Cal.  506,  4  Pac.  510,  the 
supreme  court  says:— 

"The  court  found  in  substance  that  the  plaintiff 
was  the  owner  and  in  the  possession  of  a  farm  of 
about  one  hundred  and  fifty  acres  of  land,  which  he 
cultivates  for  raising  grain,  etc.,  and  that  the  horse 
which  this  action  was  brought  to  recover  was  used 
as  a  work-horse  on  said  farm — sometimes  singly  and 
sometimes  doubly.  It  is  also  found  that  the  plaintiff 
is  the  publisher  of  a  weekly  newspaper  and  the  pro- 
prietor of  patent  medicines,  although  his  main  re- 
liance for  support  is  upon  his  farm,  'and  almost  the 
entire  income  from  that  is  from  the  services  of  said 
horse  as  a  stallion  and  the  agistment  of  mares  for 
breeding  to  him.' 

"The  plaintifif  is  the  owner  of  other  horses  pledged 
for  a  debt  owing  by  him,  and  in  the  possession  of  the 
pledgee. 

"In  addition  to  'the  farming  utensils  or  implements 
of  husbandry  of  the  judgment  debtor,'  the  law  ex- 
empts from  execution  two  horses.  {Code  Civil  Proce- 
dure, sec.  690,  subdivision  3.)  The  findings  establish 
beyond  doubt  that  the  plaintifif  employed  this  horse 
in  husbandry.  He  was  a  farm  horse  in  the  same  sense 
that  the  plows,  harrows  and  wagons  used  on  the  farm 
were  utensils  or  implements  of  husbandry.    Conced- 


243  EXEMPTIONS   FROM   EXECUTION.  §414 

ing  that  some  of  the  uses  to  which  the  horse  was  put 
were  not  strictly  in  the  line  of  husbandry,  he  was, 
nevertheless,  one  of  two  horses  owned  by  the  judg- 
ment debtor,  and  employed  by  him  in  husbandry. 
The  law  does  not  specify  how  much  or  what  use  shall 
be  made  of  'the  farming  utensils  or  implements  of 
husbandry,'  or  of  the  two  horses  exempted  from  exe- 
cution. They  are  exempt  because  owned  by  a  judg- 
ment debtor  engaged  in  husbandry.  And  in  order  to 
make  them  exempt,  it  is  not  necessary  that  the  owner 
of  them  should  devote  himself  exclusively  to  hus- 
bandry. Such  is  not  the  language  of  the  law.  It 
does  not  say  the  farming  utensils,  etc.,  of  a  husband- 
man or  farmer  shall  be  exempt,  but  the  farming 
utensils,  etc.,  of  husbandry;  that  is,  utensils,  etc.,  em- 
ployed by  the  judgment  debtor  in  husbandry  or  farm- 
ing. This  is  the  obvious  meaning  of  the  language, 
and  we  do  not  feel  at  liberty  to  hold  that  when  a 
judgment  debtor  shows  that  he  is  carrying  on  a  farm, 
and  has  but  two  horses  which  he  uses  in  farming, 
that  they  are  not  exempt  because  he  sometimes  uses 
them  for  some  other  purposes.  That  would  neces- 
sitate the  importation  of  something  into  the  law 
which  it  does  not  now  contain." 

In  an  earlier  case  it  was  also  held  that  a  stallion 
not  used  as  a  work-horse  on  a  farm,  but  kept  for  the 
service  of  mares,  is  not  exempt  from  execution. 
{Briggs  V.  McCullough,  26  Cal.  542.) 

§414.  Tools  and  implements  of  trade  —  Con- 
struction. When  the  statute  exempts  "tools  and  im- 
plements," the  word  "implement"  is  broader  than 
the  word  "tool,"  and  includes  any  instrument  needed 
and  used  for  the  purpose  of  carrying  on  the  trade 


§§415)41^       SHERIFFS  AND  CONSTABLES.  244 

or  business  of  the  debtor.  {Iti  re  McManus,  87  Cal. 
292,  22  Am.  St.  Rep.  250,  25  Pac.  413,  10  L.  R.  A. 

567.) 

A  turning  lathe  and  appliances  necessary  to  a  me- 
chanic and  machinist  in  his  business  is  exempt  from 
execution.  (Matter  of  Robb,  99  Cal.  202,  37  Am. 
St.  Rep.  48,  33  Pac.  890.) 

A  jeweler's  safe  used  in  his  business  as  a  jeweler 
and  watch-repairer  is  exempt  from  execution  under 
the  California  statute.  {In  re  McManus,  Insolvent, 
87  Cal.  292,  22  Am.  St.  Rep.  250,  25  Pac.  413,  10 
L.R.A.sbj.) 

§415.    Steam  thresher — When  not  exempt.     An 

expensive  steam  threshing-machine  and  outfit,  owned 
in  common  by  several  farmers  and  used  by  them  upon 
their  own  lands  and  also  in  doing  work  for  others  for 
hire,  is  not  exempt  as  "farming  utensils."  {In  re 
Baldwin,  71  Cal.  74,  12  Pac.  44.) 

§  416.  Threshing  outfit.  Under  section  690  of 
the  Code  of  Civil  Procedure  a  "combined  harvester" 
is  a  farming  utensil  and  an  implement  of  husbandry, 
irrespective  of  its  value,  and  if  chiefly  used  for  the 
farming  purposes  of  a  debtor,  although  occasionally 
used  for  others,  is  exempt  from  execution.  {In  re 
Estate  of  Klemp,  119  Cal.  41,  63  Am.  St.  Rep.  69, 
50  Pac.  1062,  39  L.  R.  A.  340.)  In  this  case  the 
harvester  cost  $1,500,  but  had  depreciated  in  value 
by  years  of  use.  At  the  time  of  the  above  decision 
section  690  of  the  Code  of  Civil  Procedure  provided 
no  limit  as  to  value.  Since  then  an  amendment  limits 
the  value  to  "not  exceeding  the  sum  of  $1,000."  The 
above  decision  also  holds  that  "horse-rakes,  gang- 


245  EXEMPTIONS   FROM    EXECUTION.  §416 

plows,  headers,  threshing  machines,  and  combined 
harvesters  are  as  clearly  implements  of  husbandry  as 
are  hand-rakes,  single  plows,  sickles,  cradles,  flails, 
or  an  old-fashioned  machine  for  winnowing." 

But  where  a  threshing  machine  with  an  expensive 
outfit  was  used  chiefly  in  doing  work  for  others  for 
hire,  it  was  held  {In  re  Baldwin,  71  Cal.  74,  12  Pac. 
44)  that  it  was  not  exempt. 

The  statute  exempting  the  farming  utensils  and 
implements  of  husbandry  of  the  judgment  debtor 
entitles  him  to  retain  as  exempt  a  threshing  outfit 
necessary  to  enable  him  to  carry  on  his  farming  op- 
erations, though  he  also  uses  it  in  threshing  for  others. 
{S pence  v.  Smith,  121  Cal.  536,  66  Am.  St.  Rep.  62, 
53  Pac.  653.)  The  court  said:  "Whether  any  prop- 
erty shall  be  exempt  from  execution,  as  well  as  the 
character  and  amount  of  property  to  be  exempted, 
is  purely  a  question  of  legislative  policy;  and,  when 
the  legislature  has  determined  that  the  farming  uten- 
sils and  implements  of  husbandry  of  a  judgment 
debtor  shall  be  exempt,  a  court  is  not  authorized  to 
refuse  the  exemptions  because,  in  its  opinion,  they  are 
not  necessary  for  the  judgment  debtor.  The  state 
has  fixed  no  limit  to  the  amount  of  land  which  a 
judgment  debtor  may  cultivate  by  farming,  and  if 
the  farming  utensils  which  he  has  are  necessary  for 
the  proper  cultivation  of  his  land,  they  are  exempt 
from  execution,  irrespective  of  whether  he  would 
need  them  for  cultivating  a  smaller  tract.  Section 
690,  subdivision  3,  Code  of  Civil  Procedure,  pro- 
vides that  'the  farming  utensils  or  implements  of 
husbandry  of  the  judgment  debtor'  are  exempt  from 
execution.  The  threshing  outfit  did  not  cease  to  be 
exempt  from  execution  by  reason  of  the  fact  that  it 


§§417)  4^8       SHERIFFS  AND  CONSTABLES.  246 

was  usually  the  custom  for  the  plaintiff  to  use  it  for 
hire  to  thresh  the  crops  of  others  after  doing  his  own 
threshing.  At  the  time  the  property  was  seized  it 
was  in  use  by  the  plaintiff,  and  the  court  finds  that 
all  of  it  was  necessary  for  his  use  in  farming  his  land. 
In  Baldwin's  case,  71  Cal.  74,  it  was  held  that  the 
legislature  meant  by  the  foregoing  exemption  such 
utensils  or  implements  as  are  needed  and  used  by 
the  farmer  in  conducting  his  own  farming  opera- 
tions; and  in  Stanton  v.  French,  91  Cal.  277,  25  Am. 
St.  Rep.  174,  27  Pac.  657,  it  was  held  that  the  debtor 
is  not  required  to  use  the  exempt  property  exclusive- 
ly in  his  customary  vocation.  It  would  be  a  hard 
rule  upon  the  debtor  to  hold  that,  although  the  prop- 
erty was  necessary  for  properly  carrying  on  his  farm- 
ing, he  would  forfeit  the  exemption  should  he  seek 
to  earn  something  with  it  after  he  had  ceased  to  need 
it  for  his  own  farming.  A  better  suggestion  would 
be  that,  if,  in  the  opinion  of  the  creditor,  he  is  culti- 
vating more  land  than  he  needs,  he  could  satisfy  his 
debt  by  levying  his  execution  upon  the  land  itself." 

§  417.  Provisions  for  family  use.  That  the 
courts  incline  to  a  very  liberal  construction  of  the 
exemption  laws  is  evident  in  a  recent  decision  by 
which  it  would  seem  that  fire-wood  actually  provided 
for  family  use  may  be  included  as  "provisions  for 
family  use."  {In  re  Bowman,  Insolvent,  83  Cal. 
153,  23  Pac.  375.) 

§  418.  Salaries  of  officers,  etc.  Moneys  in  the 
hands  of  federal,  state,  or  county  officers  are  exempt 
from  execution  or  garnishment  against  a  defendant 
to  whom  they  may  be  due.  (Freeman  on  Executions, 
sec.  132.) 


247  EXEMPTIONS  FROM   EXECUTION.  §419 

§419.  Waiver  of  exemption  by  officer.  Although 
in  California  the  law  provides  that  "the  earnings  of 
the  judgment  debtor  for  his  personal  services  ren- 
dered at  any  time  within  thirty  days  next  preceding 
the  levy  of  execution  or  attachment,"  may  be  claimed 
as  exempt  from  execution,  when  such  earnings  are 
necessary  for  the  use  of  his  family,  etc.,  there  is  re- 
corded in  Sonoma  Valley  Bank  v.  Hill,  59  Cal.  107, 
a  case  wherein  a  county  officer's  monthly  salary  was 
applied  on  an  execution.  It  would  seem,  however, 
that  in  that  case  the  auditor  and  treasurer  must  have 
been  in  sympathy  with  the  judgment  creditor,  for 
otherwise  the  sheriff  might  easily  have  been  frustrat- 
ed in  making  the  levy.  And,  even  when  the  warrant 
for  the  debtor's  salary  came  into  the  sherifif's  hands, 
the  sale  thereof  might  have  been  prevented  if  the 
debtor  had  claimed  his  privilege  of  exemption.  In- 
stead of  doing  so,  however,  he  allowed  the  sale  to 
go  on  without  protest,  and  received  from  the  sheriff 
the  overplus  of  the  sale.  The  debtor  subsequently 
made  application  for  a  writ  of  mandamus  to  the 
county  treasurer,  to  compel  him  to  issue  another  war- 
rant for  the  salary,  but  the  application  was  refused. 
Having  had  one  warrant  drawn  and  delivered  to  his 
lawfully  constituted  agent,  the  sherifif,  and  having 
obtained  the  benefit  of  the  proceeds  of  the  sale,  by 
payment  of  judgments  against  him,  he  had  not  the 
right  to  have  another  warrant  for  the  same  services 
drawn  and  delivered  to  him  and  obtain  double  pay- 
ment from  the  county.  The  court  held  that  "the 
debtor  must  have  known  all  the  facts  as  to  the  levy, 
seizure  and  sale  of  the  warrant  by  the  sheriff,  and 
his  conduct  was  a  ratification  of  the  acts  of  the  sheriff, 
though  the  warrant  could  not  be  levied  on  under  a 
writ  of  execution." 


§§  420-422       SHERIFFS  AND  CONSTABLES.  248 

The  above  construction  of  the  exemption  law  se- 
cures— as  the  legislature  intended  it  should — to  the 
several  classes  mentioned,  provision  for  earning  their 
support. 

§420.  Interest  in  common.  Personal  property 
which  is  exempt  from  forced  sale  on  execution  is 
none  the  less  exempt  because  the  judgment  debtor 
owns  an  undivided  interest  in  it  in  common  with  a 
stranger  to  the  judgment;  and  where  a  sheriff,  on 
ascertaining  that  property  which  has  been  attached 
is  exempt  from  execution,  refuses  to  release  it  with- 
out an  undertaking,  he  exceeds  his  authority  and  vio- 
lates his  duty.  Such  an  undertaking  is  void  for  want 
of  consideration,  and  for  having  been  illegally  ex- 
acted by  the  sherifif  under  color  of  his  office.  It  is 
the  duty  of  the  sheriflf  to  release  exempt  property, 
without  an  undertaking.     {Servanti  v.  Liisk,  43  Cal. 

238.) 

§  42 1 .  Exemption  a  personal  right.  The  ex- 
emption of  property  from  sale  on  execution  is  a  per- 
sonal right  which  the  debtor  may  waive  or  claim  at 
his  election,  and  where  the  party  fails  to  demand 
it,  he  thereby  waives  his  privilege.  (Borland  v. 
O'Neal,  22  Cal.  504;  Gavitt  v.  Doub,  23  Cal.  78.) 

§  422.    Debtor   must   claim   within   a   reasonable 

time.  An  execution  debtor  who  has  more  horses 
than  the  number  exempt  by  law  may  elect  which  he 
claims  as  exempt,  but  such  election  must  be  made 
and  the  officer  notified  thereof  either  at  the  time  of 
the  levy  or  within  a  reasonable  time  thereafter,  or 
the  right  to  elect  will  be  deemed  waived.  (Gavitt 
V.  Doub,  23  Cal.  78;  Stanton  v.  French,  83  Cal.  194, 
23  Pac.  355.) 


249  EXEMPTIONS   FROM   EXECUTION.      §§  423,  424 

§  423.  Unreasonable  delay  in  claiming  exemp- 
tion. Where  several  horses  owned  by  an  execution 
debtor  were  levied  upon,  and  no  notice  of  claim  of 
exemption  v/as  given  to  the  officer  until  the  day  of 
sale,  which  was  four  months  after  the  levy:  Held, 
that  the  right  of  election  had  been  lost  by  the  unrea- 
sonable delay  in  exercising  it,  and  that  the  officer  was 
justified  in  selling  the  property.  {Borland  v.  O'Neal, 
22  Cal.  505.) 

§  424.    What  constitutes  a  reasonable  time.     The 

notice  of  claim  should  be  promptly  given  by  the 
debtor,  in  order  that  the  officer  may  levy  on  other 
property,  in  the  place  of  that  selected,  to  secure  the 
debt,  if  there  is  any.  What  will  constitute  a  reason- 
able time  will,  therefore,  depend  upon  the  particular 
circumstances  of  each  case.  There  may  be  cases 
where  a  notice  of  the  selection  given  at  any  time 
before  the  sale  would  be  sufficient,  where  it  appears 
that  no  injury  has  been  caused  by  the  delay. 

In  a  suit  against  plaintiff  in  execution  for  the  value 
of  household  furniture  sold  thereunder,  as  being  ex- 
empt, defendant  offered  to  show  that  plaintiff  agreed 
to  place  the  property  in  the  hands  of  a  third  person, 
to  be  sold  for  the  benefit  of  defendant,  the  creditor: 
Held,  that  the  evidence  was  not  admissible,  because 
such  agreement  does  not  necessarily  waive  the  ex- 
emption from  forced  sale.  (Haswell  v.  Parsons,  15 
Cal.  267,  76  Am.  Dec.  480.) 

Where  a  party  was  absent  in  San  Francisco  at  the 
time  his  furniture  was  sold  on  execution,  on  account 
of  sickness  in  his  family,  it  is  a  sufficient  excuse  for 
not  claiming  the  exemption  at  the  time,  the  defend- 
ant, plaintiff  in  execution,  being  aware  of  such  claim, 


§§  425-427       SHERIFFS  AND  CONSTABLES.  250 

it  having  been  made  on  a  previous  seizure.  (Has- 
ivell  V.  Parsons,  15  Cal.  266,  76  Am.  Dec.  480.) 

§  425.  Sale  after  claim  made.  A  sheriff  who 
levies  upon  and  sells  property  exempt  from  execu- 
tion is  liable  for  the  value  of  such  property  if  claimed 
as  exempt  prior  to  the  sale. 

§  426.  Claimant  must  notify  officer.  The  of- 
ficer is  under  no  obligation  to  hunt  up  the  debtor  in 
advance  of  the  levy,  in  order  to  procure  a  selection  by 
him.  The  debtor  waives  his  right  by  failing  to  claim 
it;  and  a  claim  under  one  execution,  when  no  sale 
was  made  under  it,  is  not  sufficient  when  the  prop- 
erty is  levied  upon  and  sold  under  a  subsequent  ex- 
ecution. 

§  427.    Claim  of  exemption  —  How  made.     The 

requirements  of  the  debtor  upon  claim  of  exempt 
property  by  him  dififer  in  dififerent  states.  In  Ari- 
zona it  is  sufficient  that  he  shall  "designate"  the 
property  which  he  claims  as  exempt  and  "may  point 
out  the  portions  to  be  levied  upon"  (Rev.  Stats.  1887, 
sec.  1957),  while  in  Washington  the  debtor  is  re- 
quired to  deliver  to  the  officer  making  the  levy  "a 
list  by  separate  items  of  the  property  he  claims  as 
exempt."     (//  Hill's  Codes,  1891,  sec.  490.) 

Unless  the  statute  requires  the  claim  to  be  in  writ- 
ing, however,  as  in  the  state  named,  or  as  in  the  case 
of  claim  for  exemption  of  wages,  it  would  seem  that 
the  claim  of  exemption  may  be  made  orally  to  the 
officer,  and  that  he  is  bound  to  take  notice  of  the  claim 
thus  made.  Personal  property  plainly  exempt,  such 
as  household  furniture  and  the  like,  actually  in  use 


2^1  EXEMPTIONS  FROM   EXECUTION.      §§428-430 

by  the  debtor,  should  not  be  levied  upon,  even  if  not 
claimed  as  exempt. 

When  a  debtor  has  more  property  of  a  particular 
kind  than  is  exempt,  and  a  writ  is  levied  upon  a  por- 
tion, leaving  as  much  as  the  law  exempts,  and  there- 
after the  debtor  claims  a  portion  of  the  property 
levied  upon,  the  residue  being  insufficient  to  satisfy 
the  writ,  the  debtor,  in  order  to  make  good  his  claim 
of  exemption,  must  ofifer  to  surrender  to  the  officer 
the  other  property  of  the  same  general  kind,  or  so 
much  as  may  be  necessary  to  satisfy  the  writ.  (Key- 
bers  V.  McComber,  67  Cal.  395,  7  Pac.  838.) 

§  428.  Joint  claim — Effect.  A  notice  of  claim 
of  exemption,  signed  by  two  persons  is  sufficient  as 
a  claim  for  either  separately.  {Stanton  v.  French,  83 
Cal.  194,  23  Pac.  155.) 

§  429.    Priority  of  homestead  over  mortgage.     A 

declaration  of  homestead  by  the  wife,  after  the  exe- 
cution but  before  the  recording  of  a  mortgage  by 
the  husband,  prevents  the  enforcement  of  the  mort- 
gage against  the  property.  (First  National  Bank  v. 
Bruce,  94  Cal.  77,  29  Pac.  488.) 

§  430.  Grain  on  homestead  land.  The  fact  that 
land  is  homesteaded  does  not  of  itself  exempt  from 
execution  all  the  grain  grown  thereon.  It  would  be 
giving  a  strained  interpretation  to  the  language  of 
the  third  subdivision  of  section  690  of  the  Code  of 
Civil  Procedure  (California)  to  say  it  was  intended, 
in  addition  to  all  the  crop  grown  upon  the  homestead, 
that  the  debtor  should  be  secured  seed  grain  to  the 
value  of  $200.     It  is  obvious  it  is  meant  that  only 


§  430  SHERIFFS  AND  CONSTABLES.  252 

grain  to  that  amount  shall  be  exempt.  {Horgan  v. 
Amick,  62  Cal.  401.) 

In  the  case  of  Dascey  v.  Harris,  65  Cal.  357,  4 
Pac.  404,  an  action  in  replevin,  the  following  is  the 
opinion  of  the  court:  ''The  wheat  which  is  the  sub- 
ject of  this  action  was  grown  on  the  homestead  of 
plaintififs.  On  the  15th  of  March,  1879,  the  plaintifif, 
John  Dascey,  filed  his  petition  in  insolvency,  and 
such  proceedings  were  had  that  on  the  29th  of  April, 
1879,  he  made  an  assignment  of  all  his  property,  real 
and  personal,  to  the  defendant,  assignee  in  insolvency. 
No  property  was  specifically  described  in  the  assign- 
ment, but  words  of  general  description  only  were 
used.  At  the  time  of  filing  the  petition,  the  premises 
constituting  the  homestead  had  been  sown  with 
wheat,  which  was  then  growing,  and  continued  to 
be  growing  until  after  the  assignment.  Some  time 
in  August,  1879,  after  the  wheat  so  raised  on  the 
premises  had  ripened,  and  been  harvested,  threshed 
and  sacked  by  said  John  Dascey,  the  defendant,  as 
assignee,  under  an  order  of  the  county  court,  seized 
the  grain  on  the  premises,  and  caused  it  to  be  removed 
therefrom.  The  wheat  when  so  taken  was  of  the 
value  of  $1,267.  It  <^o^s  not  appear  that  evidence 
was  given  of  any  damage  to  plaintiffs  besides  the 
value  of  the  wheat. 

"At  the  time  of  the  assignment  the  wheat  in  contro- 
versy had  not  such  an  existence  as  that  it  passed  to 
the  assignee.  At  that  time  the  growing  wheat  was  a 
part  of  the  homestead,  at  least  to  the  extent  that  a 
conveyance  of  the  homestead  would  have  passed  the 
growing  crop. 

"Judgment  reversed  and  cause  remanded,  with 
instructions  to  render  judgment  on  the  findings  in 


253  EXEMPTIONS   FROM   EXECUTION.      §§431-434 

favor  of  plaintiffs  for  the  possession  of  the  property 
sued  for;  or  in  case  a  delivery  cannot  be  had,  for 
$1,267,  with  interest  thereon  from  the  date  of  the 
seizure  by  defendant,  and  for  costs." 

§  43 1 .    Joint  ownership  in  the  property  claimed. 

Property  owned  jointly  by  husband  and  wife  and 
habitually  used  by  the  husband  alone  in  earning  a 
living,  cannot  be  by  him  claimed  as  wholly  exempt 
as  against  an  execution  against  both.  (Stanton  v. 
French,  83  Cal.  194,  23  Pac.  155.) 

§  432.    Partial  use  of  building  for  hotel.    The  use 

of  a  building  partly,  or  even  chiefly,  for  hotel  pur- 
poses, for  which  the  owner  rents  a  portion,  does  not 
deprive  him  of  his  homestead  exemption,  if  the  build- 
ing is  and  continues  to  be  the  bona  fide  residence  of 
the  family.  (Heathman  v.  Holmes,  94  Cal.  291, 
29  Pac.  404.) 

§  433.    How  a  homestead  may  be  levied  upon. 

There  is  no  lien  of  the  judgment  upon  a  homestead 
until  the  levy  of  an  execution;  and  that  levy  creates 
no  lien,  except  for  the  purpose  of  and  as  a  founda- 
tion for  instituting  and  carrying  on  proceedings  to 
have  an  appraisement  and  sale  under  the  statute.  The 
homestead,  no  matter  what  may  be  its  actual  value, 
cannot  be  subjected  to  execution  or  forced  sale,  except 
in  the  manner  pointed  out  by  statute.  {California. 
Civ.  Code,  sees.  1241,  1245- 1259.) 

§  434.  Homestead  insurance  exempt.  If  the 
wife  declares  a  homestead  on  common  property,  and 
the  husband  procures  a  policy  of  insurance  on  the 


§§435-438       SHERIFFS  AND  CONSTABLES.  254 

house  thereon,  and  the  house  is  destroyed  by  fire,  the 
sum  due  from  the  insurance  company  is  not  subject 
to  garnishment  by  a  judgment  creditor  of  the  hus- 
band.    {Houghton  V.  Lee,  50  CaL  loi.) 

§  435.  When  judgment  is  not  a  lien.  Where  a 
homestead  was  declared  after  an  attachment  on  the 
land  and  a  judgment  in  a  justice's  court,  but  no  ab- 
stract had  been  filed  or  recorded  in  the  recorder's 
office,  it  was  held  {JVilson  v.  Madison,  58  Cal.  i) 
that  at  the  time  of  the  declaration  of  homestead  the 
judgment  did  not  constitute  a  lien  upon  the  premises 
within  section  1241  of  the  Civil  Code,  and  a  sale 
under  the  judgment  conveyed  no  title. 

§  436.     Judgment   no   lien   upon   homestead.     A 

judgment  cannot  become  a  lien  upon  the  homestead. 
It  can  become  a  lien  only  upon  the  real  property  of 
the  judgment  debtor,  which  is  not  exempt  from  exe- 
cution.    (Boivman  v.  Norton,  16  Cal.  214.) 

§  437.    Judgment  after  filing  of  homestead.     A 

judgment  obtained  after  the  filing  of  a  declaration 
of  homestead  cannot  be  enforced  against  a  homestead, 
although  an  attachment  may  have  been  levied  upon 
the  premises  before  the  filing  of  the  declaration. 
{Sullivan  v.  Hendrickson,  54  CaL  258.) 

§  438.  Levy  on  homestead  void.  The  sheriff^  of 
Calaveras  County  was  sued  on  his  official  bond  for 
selling  under  execution  against  J.  Kendall  certain 
property  claimed  by  plaintiff  as  a  homestead.  The 
supreme  court  decided  in  Kendall  v.  Clark,  10  Cal. 
16,  that  no  damage  had  or 'could  result  from  such  a 


255  EXEMPTIONS   FROM   EXECUTION.      §§  439,  440 

sale.  If  the  property  sold  was  a  homestead  the  sher- 
iff's deed  conveyed  nothing.  The  purchaser  at  such 
sale  could  acquire  no  right  to  the  property,  nor  could 
the  plaintiff  suffer  any  injury. 

§  439.  Cloud  on  title  of  homestead.  The  right 
of  homestead  having  once  attached,  and  not  having 
been  alienated,  a  deed  from  the  sheriff  under  an  exe- 
cution against  the  husband  would  be  a  cloud  upon 
the  title  and  prevent  the  free  alienation  of  the  prop- 
erty by  the  husband  and  wife.  {Dunn  v.  Tozer,  10 
Cal.  167.) 

Where  a  homestead  is  sold  by  the  sheriff  on  an 
execution  against  the  husband,  or  husband  and  wife, 
and  a  deed  given  to  the  purchaser  therefor,  it  is  a 
cloud  upon  the  title,  and  a  court  of  equity  will  re- 
move it.     {Riley  v.  Pehl,  23  Cal.  71.) 

§  440.  When  sale  may  be  enjoined.  A  sale  by 
a  sheriff  of  real  estate  upon  an  execution  against  the 
grantor  will,  even  if  not  effectual  to  pass  the  title  to 
the  purchaser,  create  a  doubt  as  to  the  validity  of  the 
grantee's  title  and  cast  a  cloud  upon  it  and  the  grantee 
can  maintain  an  action  to  enjoin  the  sale.  {England 
V.  Lewis,  25  Cal.  338.) 

§  441.    Purchase  money  lien — Right  of  assignee. 

Under  a  statute  providing  that  property  mentioned  is 
not  exempt  from  attachment  issued  in  an  action  for 
the  purchase  price  thereof,  or  from  execution  issued 
upon  any  judgment  rendered  therein,  an  assignment 
of  a  note  given  for  the  purchase  price  of  such  prop- 
erty operates  as  an  assignment  of  the  right  to  collect 
it,  and  the  assignee  has  the  same  right  to  sue  and  levy 


§§442,  443       SHERIFFS  AND  CONSTABLES.  256 

on  the  property  that  the  vendor  had.  {Langevin  v. 
Bloom,  69  Minn.  22,  65  Ain.  St.  Rep.  546,  71  A^.  PF. 
697.)  The  argument  in  favor  of  this  decision  is  that 
unless  the  vendor  can  sell  the  debt  accompanied  by 
the  privilege  or  right  to  levy  on  the  property  sold 
in  the  hands  of  the  vendee,  he  does  not  get  the  full 
benefit  of  the  right  which  the  statute  gives  him.  This 
right  is  one  of  the  things  which  gives  value  to  the 
debt.  There  is  no  reason  in  equity  why  the  vendee 
should  hold  the  property  as  exempt  against  process 
to  collect  the  purchase  money  in  favor  of  the  assignee 
of  the  vendor,  any  more  than  if  the  process  was  in 
favor  of  the  vendor  himself.  The  theory  upon  which 
the  statute  cited  was  enacted,  and  upon  which  it  is 
held  constitutional,  is  that  the  buyer  ought  not  as 
against  the  seller  to  hold  the  property  as  exempt  until 
he  has  paid  for  it,  and  that  the  property  passes  to 
the  buyer  subject  to  this  quasi  vendor's  lien;  that  is, 
subject  to  the  paramount  right  of  the  seller  to  make 
the  purchase  money  out  of  it. 

§  442.  Exemption  claims  in  partnership.  In  pro- 
ceedings in  insolvency  instituted  by  a  partnership 
neither  of  the  partners  can  claim  to  have  any  part  of 
the  partnership  assets  set  apart  to  him  as  exempt 
from  execution.  Partnership  property  is  not  exempt 
by  law  from  forced  sale,  though  it  is  such  property 
as  would  be  exempt  if  one  partner  were  the  sole 
owner.  {Cowan  v.  His  Creditors,  yy  Cal.  403,  11 
Am.  St.  Rep.  294,  19  Pac.  755.) 

§  443.  Horse,  saddle,  and  bridle.  Tn  Texas  the 
exemption  of  a  horse  has  been  held  to  include  his 
saddle  and  bridle,  and  also  the  rope  with  which  he 


257  EXEMPTIONS   FROM   EXECUTION.      §§  444,  445 

was  led  or  fastened.  In  these  cases  the  court  said: 
"A  horse  was  not  reserved  because  he  was  a  horse, 
but  because  of  his  useful  qualities,  and  his  almost 
indispensable  services;  but  what  would  be  the  benefit 
of  a  horse  without  shoes,  or  without  saddle  and  bridle, 
or'without  gears,  if  employed  for  purposes  of  agri- 
culture? It  cannot  be  presumed  that  the  legislature 
intended  that  a  debtor  should  be  reduced  to  the  most 
primitive  usage  of  riding  without  saddle  or  bridle; 
yet  this  may  often  be  the  only  alternative  if  such 
appendages  be  held  not  exempt  from  execution.  It 
would  seem  that  by  fair  construction  the  grants  in 
the  statute  must  include,  not  only  the  subject  itself, 
but  everything  absolutely  essential  to  its  beneficial 
enjoyment." 

§  444.  Lumber  and  shingle  machines.  A  steam 
engine,  shingle  machine,  and  saw  gummer  owned  by 
a  manufacturer  of  lumber  and  shingles  are  within 
Howard's  Annotated  Statutes,  section  7686,  subdivi- 
sion 8,  exempting  from  levy  and  sale  under  execu- 
tion, etc.,  "the  tools,  implements  ...  or  other  things 
to  enable  a  person  to  carry  on  the  profession,  trade, 
occupation,  or  business"  in  which  he  is  engaged. 
(Wood  V.  Bresnahan,  63  Mich.  614,  30  A^.  JV .  206.) 

§  445.  Exempt  seed  grain.  In  an  action  against 
a  sheriff  in  Minnesota  it  was  held  that  a  willful  levy 
upon  exempt  seed  grain  with  the  knowledge  that  it 
was  exempt  justified  exemplary  damages;  and  that 
an  owner  of  a  farm  may  claim  the  exemption  of  seed 
grain  when  renting  the  farm  on  shares  and  furnishing 
the  seed.  That  it  was  immaterial  whether  the 
debtor  required  the  seed  grain  in  conducting  his  own 


§§  44^-449       SHERIFFS  AND  CONSTABLES.  258 

farm  personally  or  for  the  purpose  of  furnishing  it 
to  a  tenant  who  conducted  the  farm  on  shares.  In 
either  case  it  was  for  the  debtor's  personal  use. 
(Matteson  v.  Munroe,  '^o  Minn.  340,  83  A'.  JV .  153.) 

§  446.  Watchmakers*  tools.  Under  a  statute  ex- 
empting from  execution  "tools  and  implements"  of 
trade  or  business,  a  lamp  and  show-cases  with  their 
tables  and  frame,  of  a  watchmaker  and  jeweler  are 
exempt.  {Begin/ lard  v.  Bartlett,  19  Kan.  382,  27 
Am.  Rep.  120.) 

§  447.  Lens  of  photographer.  A  lens  of  a  pho- 
tographer may  be  exempt  as  an  implement  of  trade 
{Davidson  v.  Harmon,  67  Conn.  312,  52  Am.  St. 
Rep.  282,  34  Atl.  1050,  34  L.  R.  A.  718),  upon  the 
same  principle  that  a  safe  used  by  a  jeweler  in  his 
business  is  held  exempt  under  a  statute  exempting 
the  implements  of  a  mechanic  or  artisan  necessary  to 
carry  on  his  trade.  {In  re  McManiu,  87  Cal.  292, 
22  Am.  St.  Rep.  250,  25  Pac  413,  10  L.  R.  A.  567.) 

§  448.  Safes.  The  safe  of  an  insurance  agent, 
used  as  a  place  of  deposit  for  notes  and  policies  of 
insurance  and  odier  papers  pertaining  to  the  business, 
is  exempt.  {Betz  v.  Maier,  12  Tex.  Civ.  App.  219, 
33  S.  W.  710.) 

§  449.  Peddlers.  One  who  is  engaged  in  deliver- 
ing bread  to  the  customers  of  his  wife,  who  owns  the 
bread  and  business  and  collects  and  receives  the  pro- 
ceeds of  sale,  is  not  a  peddler  within  the  meaning 
of  section  690,  subdivision  6,  of  the  Code  of  Civil 
Procedure,  exempting  from  sale  on  execution  cer- 


259  EXEMPTIONS   FROM    EXECUTION.      §§450,451 

tain  property  of  a  peddler  by  means  of  which  he 
earns  his  living.  [Stanton  v.  French,  83  Cal.  194, 
23Prtc.  355.) 

§  450.  Printers*  tools.  An  apparatus  for  printing, 
consisting  of  a  printing-press,  cases,  types,  etc.,  may 
be  "tools"  exempted  from  execution  under  the  stat- 
ute, if  necessary  for  the  upholding  of  life.  [Patten 
V.  Smith,  4  Conn.  450,  10  Am.  Dec.  166.) 

Under  section  690,  subdivision  4,  of  the  Code  of 
Civil  Procedure  a  person  engaged  in  printing  cannot 
claim  as  exempt  any  number  of  presses  and  amount 
of  type  he  may  have,  but  only  such  as  are  "necessary 
to  carry  on  his  trade."  [In  re  Mitchell,  102  Cal. 
534,  36P«c.  840.) 

The  paper  and  ink  employed  by  a  printer  in  his 
business  are  stock  in  trade,  and  not  "tools  or  imple- 
ments of  trade"  within  the  meaning  of  a  statute  ex- 
empting such  tools,  etc.,  from  execution.  [Sallee  v. 
Waters,  17  Ala.  482.)  The  same  decision  contains  the 
declaration  that  the  press  and  type  necessarily  used 
by  him  and  his  journeymen  in  the  publication  of  a 
weekly  newspaper  are  tools  or  implements  of  trade 
within  the  meaning  of  the  statute  of  exemptions. 

§451.  Watch  repairers.  On  a  question  whether 
a  safe  used  by  a  jeweler  and  watch-repairer  should 
be  set  off  to  him  in  insolvency  proceedings  as  exempt 
under  section  690,  subdivision  4,  of  the  Code  of  Civil 
Procedure  exempting  from  execution  "the  tools  or 
implements  of  a  mechanic  or  artisan  necessary  to 
carry  on  his  trade,"  he  and  another  practical  watch- 
maker and  jeweler  testified  that  such  a  safe  was  nec- 
essary to  the  profitable  conduct  of  his  business,  and 


§§  452-454       SHERIFFS  AND  CONSTABLES.  260 

that  customers  would  not  leave  their  watches  to  be 
repaired  unless  one  were  used:  Held,  that  the  safe 
was  properly  set  off  to  him.  {In  re  McManus, 
87  Cal.  292,  22  Am.  St.  Rep.  250,  25  Pac.  413,  10 
L.  R.  A.  567.) 

§  452.  Turning  lathe.  A  turning  lathe,  which  is 
easily  turned  by  one  man,  and  such  as  is  ordinarily 
used  by  mechanics,  is  exempt  from  execution,  to  a  me- 
chanic under  section  690,  subdivision  4,  of  the  Code 
of  Civil  Procedure  exempting  "the  tools  or  imple- 
ments of  a  mechanic  necessary  to  carry  on  his  trade." 
(In  re  Robb,  99  Cal.  202,  37  Am.  St.  Rep.  48,  33  Pac. 
890.)  Such  a  lathe  run  with  a  belt  and  gasoline  en- 
gine was  also  held  to  be  exempt  in  an  action  in  a  su- 
perior court  in  California.  (In  re  McManus,  87  Cal. 
292,  22  Am.  St.  Rep.  250,  25  Pac.  413,  10  L.  R.  A. 
567.)  The  court  said:  "The  term  'implements'  has  a 
broader  signification  than  the  term  'tools,'  and  in- 
cludes any  instrument  needed  and  used  for  the  pur- 
pose of  carrying  on  his  trade  or  business";  that  the 
statute  must  be  liberally  construed  as  being  intended 
to  protect  the  debtor. 

§  453.  Cheese  presses.  In  Kansas  instruments 
used  by  a  woman  in  making  cheese,  such  as  presses, 
vats,  and  knives,  are  exempt  from  seizure  under  judi- 
cial process  as  tools  and  instruments.  (Fish  v.  Street, 
27  Kan.  270.) 

§  454.  Insurance  agents  and  searchers.  One  car- 
rying on  business  as  an  "insurance  agent  and  ab- 
stracter of  titles"  is  entitled  to  exemption  from  levy 
upon  execution  of  one  iron  safe,  one  set  of  abstracts, 


26 1  EXEMPTIONS  FROM  EXECUTION.      §§  455-458 

and  one  cabinet  and  table  used  in  his  business,  such 
articles  being  "instruments"  within  the  meaning  of 
the  law.     {Davidson  v.  Sechrist,  28  Kan.  324.) 

§  455.  Milliners'  exemptions.  Under  General 
Statutes,  chapter  133,  section  32,  exempting  from  ex- 
ecution the  tools,  implements,  and  fixtures  necessary 
to  carry  on  the  business  of  a  debtor,  not  exceeding 
one  hundred  dollars  in  value,  a  clock,  stove,  screen, 
pitcher,  and  table-cover  used  by  a  milliner  should 
be  exempted  if  the  jury  find  them  to  have  been  neces- 
sary and  in  use  in  her  business,  (f Foods  v.  Keyer, 
96  Mass.  (14  Allen)  236,  92  Am.  Dec.  766.) 

§  456.  Tailors'  exemptions.  A  tailor  may  hold 
exempt  from  attachment  or  execution  two  sewing  ma- 
chines used  for  the  purposes  of  his  trade  and  reason- 
ably necessary  therefor,  under  General  Statutes  of 
1878,  chapter  66,  section  310,  exempting  tools  used  in 
a  trade,  and  that  although  subdivision  9  specifically 
enumerates  only  "one  sewing  machine."  (Cronfeldt 
V.  Avrol,  50  Minn,  i^ij^  36  Am.  St.  Rep.  648,  52 
N.  W.  857.) 

§  457.  Double  exemptions.  The  act  exempting 
specific  property  to  the  head  of  a  family,  and  also 
the  tools  of  a  mechanic,  is  cumulative,  so  that,  if  a 
mechanic  be  the  head  of  a  family,  he  may  have  ex- 
empt in  addition  to  his  tools  such  property  as  the  head 
of  a  family  would  be  entitled  to  have  who  is  not  a 
mechanic.     (Harrison  v.  Martin,  7  Mo.  286.) 

§  458.  Weavers'  looms.  A  weaver's  loom  is  ex- 
empt as  a  necessary  tool  of  a  tradesman.  [McDowell 
V.  Shotwell,  2  IF  hart.  26.) 


§§  459-4^2       SHERIFFS  AND  CONSTABLES.  262 

§  459.  Barbers'  chairs.  A  barber's  chair  and 
foot-rest  used  by  a  barber  in  his  business  are  exempt 
from  attachment  as  "tools."      [Allen  v.   Thompson, 

45  Vt.  472.) 

Two  barber  chairs,  a  mirror  in  front  of  and  a 
table  accompanying  each,  used  constantly  for  five 
years  in  carrying  on  his  trade  by  a  barber,  a  citizen 
of  the  state  and  head  of  a  family,  are  exempt  from 
execution,  where  he  is  dependent  on  his  trade  for 
support,  and  has  kept  another  barber  employed  to 
assist  him.  {Fore  v.  Cooper,  [Texas)  Civ.  App.,  34 
S.  IF.  34I-) 

§  460.  Commercial  firms.  The  implements  by 
which  the  business  of  a  commercial  firm  is  carried  on 
are  not  legally  subject  to  seizure.  [Harrison  v. 
Mitchell,  13  La.  Ann.  260.) 

§461.  Shoemakers'  machines.  Machines  of  sim- 
ple construction,  moved  by  hand  or  foot,  and  used 
in  the  manufacture  of  boots  are  exempt  from  seizure 
in  the  hands  of  a  shoemaker  carrying  on  a  small 
business,  though  he  has  in  his  employ  men  working 
under  him.  [Daniels  v.  Hay  ward,  87  Mass.  (5  Allen) 
43,  81  Am.  Dec.  731.) 

§  462.  When  a  stallion  is  not  exempt.  Tn  Rob- 
ert V.  Adams,  38  Cal.  383,  99  Am.  Dec.  413,  it  is 
held  that  "a  stallion  is  not  exempt  from  levy  when 
only  kept  for  services  of  mares  and  not  used  as  a 
work-horse.  In  exempting  oxen,  horses,  and  mules 
the  intention  was  to  enable  the  farmer  to  prosecute 
his  business  of  farming  in  the  ordinary  sense  of  that 
term;   and  the  oxen,  horses,  and  mules  which  are 


263  EXEMPTIONS   FROM   EXECUTION.      §§463,  464 

reserved  to  him  must  be  such  as  are  suitable  and  in- 
tended for  that  use.  If  a  contrary  construction  of 
this  provision  were  to  prevail  a  farmer  in  failing 
circumstances  might  invest  his  whole  estate  in  two 
valuable  stallions  or  race-horses  worth  ten  thousand 
or  twenty  thousand  dollars  each,  with  no  intention 
whatever  to  use  them  for  farming  purposes,  and  by 
claiming  them  as  exempt  from  execution  might  de- 
fraud his  creditors  under  color  of  law  to  a  large 
amount.  The  benevolent  design  of  the  statute  might 
thus  be  perverted  to  purposes  of  the  grossest  fraud." 

§  463.  Multiplying  employments.  One  cannot  by 
multiplying  his  employments  claim  cumulatively  sev- 
eral exemptions  given  by  statute  to  the  different  em- 
ployments. The  exemption  is  held  to  refer  to  that 
occupation  which  engrosses  the  most  of  his  time  and 
attention. 

§  464.  Exemption  of  officers'  salary  after  expira- 
tion of  his  term.  Creditors  of  a  public  officer  can- 
not intercept  his  salary  by  legal  process.  Hence  the 
salary  of  a  building  inspector  cannot  be  reached  by 
proceedings  supplementary  to  execution  for  the  satis- 
faction of  a  judgment,  though  such  proceedings  are 
not  commenced  until  after  his  term  has  expired  and 
he  has  ceased  to  be  an  officer.  {Orine  v.  Kingsley, 
73  Minn.  143,  72  Am.  St.  Rep.  614,  75  N.  JV .  1 123.) 
''We  have  repeatedly  held,"  said  the  court,  "that  the 
salary  of  a  public  officer  cannot  be  reached  by  his 
creditors  by  legal  process.  {Roeller  v.  Ames,  33 
Minn.  132,  22  N.  W.  177;  Sandwich  Mfg.  Co.  v. 
Krake,  66  Minn.  1 10,  61  Am.  St.  Rep.  395,  68  iV.  JV. 
606;  Sexton  v.  Broun,  72  Minn.  377,  75  .V.  //'.  600.) 


§  464  SHERIFFS  AND  CONSTABLES.  264 

This  doctrine  is  founded  on  reasons  of  public  policy, 
which  may  be  all  summed  up  in  the  general  proposi- 
tion that  any  other  rule  would  interfere  with  the 
efficiency  of  the  public  service. 

"It  is  sought,  however,  to  distinguish  this  from 
former  cases  by  the  fact  that  these  proceedings  were 
not  commenced  until  after  the  defendant's  term  of 
office  had  expired,  and  he  had  ceased  to  be  an  officer. 
It  is  argued  that  under  such  circumstances  it  could 
not  possibly  affect  the  efficiency  of  the  public  service 
to  permit  the  salary  remaining  due  the  defendant 
to  be  intercepted  by  legal  process,  and,  as  the  reason 
for  the  rule  has  ceased  to  exist,  the  rule  itself  no 
longer  obtains. 

"It  seems  to  us  that  the  attempted  distinction  is 
merely  one  of  degree,  and  not  of  principle.  To 
permit  money  due  as  salary  to  a  public  officer  to  be 
intercepted  by  legal  process  after  the  party  had  gone 
out  of  office  could  not,  of  course,  affect  or  change  the 
character  of  his  past  services,  but  such  a  rule  might 
prejudicially  afifect  the  public  service  generally.  The 
services  of  public  officers  are  usually  not  paid  for 
until  after  they  have  been  performed.  They  are,  as 
a  rule,  paid  for  at  stated  periods — as,  for  example, 
monthly.  There  must  be  almost  necessarily  the  lapse 
of  some  time  between  the  expiration  of  a  term  of 
office  and  the  payment  of  the  last  installment  of 
salary,  during  which,  according  to  the  plaintiff's  con- 
tention, it  would  be  subject  to  be  intercepted  by  legal 
process.  The  fact  that  this  could  be  done  might 
interfere  with  the  right  of  the  public  to  fill  offices 
with  the  most  suitable  men,  regardless  of  their  finan- 
cial condition,  and  might  also  affect  unfavorably  the 
character  of  the  services  of  the  incumbent  of  public 


265  EXEMPTIONS   FROM   EXECUTION.  §  465 

offices — at  least  toward  the  close  of  their  term  of 
office.  We  can  also  conceive  of  abuses  to  which  it 
might  lead,  where  the  power  of  removal  from  office 
at  discretion  is  vested  in  some  superior  officer  or  body. 
"It  may  be,  and  probably  is,  an  open  question 
whether,  under  existing  conditions,  the  immunity  of 
the  salaries  of  public  officers  from  legal  process  bene- 
fits or  injures  the  public  service;  but  the  doctrine  is 
too  firmly  established  to  be  overturned  by  the  courts, 
and,  as  long  as  it  obtains,  we  can  see  no  reason 
founded  on  principle  for  the  distinction  for  which 
the  plaintiff  contends." 

§  465.  Cloth  for  clothing  exempt.  "In  giving  a 
construction  to  a  remedial  statute,"  says  the  Massa- 
chusetts supreme  court  in  the  case  of  Richardson  v. 
^  Buswell,  10  Met.  506,  43  Am.  Dec.  450,  "we  are  to 
bear  in  mind  the  great  object  and  purposes  which 
apparently  led  to  its  enactment,  the  mischief  intended 
to  be  avoided,  and  which  called  for  a  remedy.  By 
the  general  law  of  attachment,  independent  of  the 
exemption  which  the  statutes  have  made  from  time 
to  time,  everything  belonging  to  the  debtor,  in  the 
nature  of  property,  might  be  taken  on  execution  and 
sold.  The  law  interposed,  and,  to  secure  to  the 
debtor  the  absolute  necessaries  of  life,  exempted  from 
attachment  and  execution  his  'necessary  wearing  ap- 
parel.' It  is  admitted  that  the  wearing  apparel, 
which  was  about  to  be  made  from  the  articles  seized 
on  execution,  was  necessary  to  the  plaintiff.  But 
it  is  said  that  it  is  not  exempted  from  execution,  be- 
cause the  cloth  and  trimmings  thus  seized  were  not 
yet  fashioned  and  formed  into  a  coat;  and  it  is  con- 
tended that,  until  that  takes  place,  the  exemption  does 


§  466  SHERIFFS  AND   CONSTABLES.  266 

not  apply.  The  counsel  for  the  defendant  asks,  What 
is  the  limit  to  the  exemption  of  articles  adapted  to 
clothing,  if  not  that  by  him  now  insisted  upon?  Is 
the  execution  to  be  applied  to  the  earlier  stages  of 
the  wool  manufactured,  or  the  flannel  before  it  is 
fulled  and  dyed?  Now  it  seems  to  us,  that  whatever 
difficulties  might  exist  as  to  the  articles  in  these 
earlier  stages  above  supposed,  they  do  not  arise  here. 
This  cloth  was  not  merely  made,  or  purchased  for 
clothing,  but  was  actually  appropriated  to  that  pur- 
pose. The  case  does  not,  therefore,  depend  upon  the 
mere  purpose  of  mind  of  the  debtor  to  make  such 
use  of  it  at  a  future  day,  but  on  actual  appropriation 
of  it  to  the  purpose  of  wearing  apparel.  To  be  useful 
and  convenient  for  clothing,  the  articles  needed  the 
operation  of  the  tailor,  and  they  were  placed  in  his 
hands,  to  be  made  into  a  coat.  Having  been  thus 
appropriated  and  used,  it  assumes  the  character  of 
clothing  for  the  party,  and  is  within  the  exemption 
given  by  the  statute." 

§  466.  A  watch  is  wearing  apparel.  The  supreme 
courts  of  Oregon  and  South  Dakota  have  declared 
that  a  watch  and  chain  are  wearing  apparel  and  ex- 
empt from  execution.  It  is  not  so  held  in  some  of 
the  other  states.  The  California  exemption  law  in- 
cludes "wearing  apparel"  as  articles  that  cannot  be 
levied  upon  and  sold  under  execution.  The  court  in 
the  South  Dakota  case  referred  to — Grover  v.  Ed- 
monds, 8  S.  D.  271,  59  Am.  St.  Rep.  762,  66  N.  W. 
310 — said:  "Appellant  now  contends  that  they  [a  gold 
watch  and  chain]  are  exempt  under  section  5127  of 
the  Compiled  Laws,  which  makes  absolutely  exempt 
all  wearing  apparel  and  clothing  of  the  debtor  and 


267  EXEMPTIONS  FROM   EXECUTION.  §  466 

his  family."    Whether  a  watch  carried  constantly  by 
the  debtor  should  be  regarded  as  wearing  apparel 
within  the  intent  of  the  statute  is  the  only  question 
to  be  determined.     Under  a  law  providing  that  the 
"necessary  wearing  apparel  owned  by  any  person, 
to  the  value  of  one  hundred  dollars,"  shall  be  exempt, 
if  selected,  the  supreme  court  of  Oregon  held  that  a 
watch  not  exceeding  seventy  dollars  in  value  should 
be  considered  as  an  article  of  "wearing  apparel,"  and 
quoted  with  approval  from  the  language  of  Ham- 
mond, J.,  in  In  re  Steele,  2  Flip.  324,  Fed.  Cas.  No. 
13346,  as  follows:   "It  would  not  be  doing  any  great 
violence  to  the  meaning  of  the  term  Svearing  ap- 
parel,' as  used  in  the  Bankrupt  Act,  to  include  in  it 
a  gold  watch  of  moderate  value.     The  definition  of 
the  word  'apparel,'  as  given  by  lexicographers,  is  not 
confined   to   clothing.     The   idea  of  ornamentation 
seems  to  be  rather  a  prominent  element  in  the  word, 
and  it  is  not  improper  to  say  that  a  man  'wears'  a 
watch  or  'wears'   a  cane."      (Stewart  v.  McClung, 
12   Or.   431,   53   Am.   Rep.   374,   8  Pac.   447.)      In 
Rothschild  v.  Boelter,  18  Minn.  362,  it  was  held  that 
a  silver  watch  and  chain  worth  forty  dollars  or  fifty 
dollars,  worn  by  the  debtor,  is  not  exempt  under  the 
statute  as  "wearing  apparel  of  the  debtor  and  his 
family."     The  court  say:    "That  an  article  may  be 
worn  does  not  make  it  wearing  apparel  within  this 
statute.    The  words  are  to  be  construed  in  this  case 
according  to  the  common  and  approved  usage  of  the 
language,  namely,  as  referring  to  garments  or  cloth- 
ing generally  designed  for  wear  of  the  debtor  and 
his  family."     It  will  be  observed,  however,  that  the 
Minnesota  statute  exempts  "  all  wearing  apparel  and 
clothing   of   the   debtor   and   his    family."      If   the 


§  467  SHERIFFS  AND  CONSTABLES.  268 

exemption  was  to  be  limited  to  "garments  or  cloth- 
ing generally  designated  for  wear  of  the  debtor 
and  his  family,"  it  was  unnecessary  to  use  both 
terms,  "wearing  apparel"  and  "clothing."  All  au- 
thorities define  "apparel"  as  including  more  than 
"clothing."  Presumably  the  legislature  employed 
both  terms  advisedly,  and  for  the  purpose  of  in- 
cluding in  the  exemption  more  than  would  be  un- 
derstood "by  the  term  "clothing."  The  exemption  is 
not  limited  in  value,  nor  by  the  word  "necessary," 
found  in  most  statutes.  Watches  are  as  essential  to 
the  comfort  and  convenience  of  men  in  nearly  all 
vocations  as  are  hats  or  coats;  in  many  they  are 
absolute  necessities.  The  same  condition,  in  perhaps 
a  less  marked  degree,  prevailed  when  the  statute  un- 
der discussion  was  enacted.  While  the  question  is  not 
free  from  difficulty,  and  one  upon  which  courts  may 
easily  differ,  we  are  inclined  to  hold  that  defendant's 
watch  and  chain  were  absolutely  exempt  as  wearing 
apparel." 

§  467.  Goods  not  exempt  for  money  loaned  for 
purchase  price.  It  has  been  held  that  a  claim  for 
purchase  money  need  not  have  arisen  in  favor  of  the 
seller  of  property,  and  that  one  who  lent  money  to 
be  used,  and  which  was  used,  in  the  purchase  of  a 
chattel  has  a  claim  for  purchase  money  against  which 
the  exemption  of  the  chattel  from  execution  cannot 
be  successfully  urged.  A  judgment  for  the  conver- 
sion of  goods  is  not,  it  is  said,  within  the  benefit  of 
this  rule.  It  has  been  held  that  the  judgment  must  be 
in  favor  of  the  vendor,  and  therefore  that  the  trans- 
feree of  a  note  given  for  purchase  money  has  no 
immunity  from  the  claim  for  exemption.    Upon  this 


269  EXEMPTIONS   FROM    EXECUTION.  §  467 

subject  the  authorities  are  very  evenly  divided,  and 
we  think  those  extending  to  an  assignee  of  a  vendor 
the  same  immunity  from  the  exemption  laws  to  which 
he  was  entitled  are  supported  by  the  better  reasoning. 
(Freeman  on  Executions,  sec.  217.) 

"The  main  question  in  this  case,"  say  the  court  in 
In  re  Houlehan  v.  Rassler,  73  Wis.  557,  41  N.  W. 
720,  "was  whether  the  property  levied  upon  by  the 
defendant  as  constable  was  exempt.  We  are  com- 
pelled to  dififer  from  the  learned  circuit  court  on 
that  question,  and  to  hold  that  the  property  was  not 
exempt.  The  statute  is  very  plain  and  explicit,  and 
is  susceptible  of  but  one  meaning,  and  the  facts  found 
bring  this  property  clearly  within  its  very  terms.  The 
plaintiff  in  the  case  in  which  the  execution  was  issued 
'loaned  to  the  plaintifif,  at  his  special  instance  and 
request,  eighty  dollars,  to  be  used  by  said  plaintifif  in 
purchasing,  and  to  enable  him  to  purchase,  a  team  of 
horses  and  their  harness  of  one  J.  Murray;  and  that 
said  eighty  dollars  were  used  by  said  plaintifif  in 
making  said  purchase,  and  were  by  him  paid  to  said 
J.  Murray  as  a  part  of  the  consideration  for  said 
horses  and  harness.'  I  repeat  these  facts  here  to  show 
how  clearly  they  come  within  the  very  terms  of  the 
statute.  The  statute  is:  'No  property  exempt  by  the 
provisions  of  this  statute  shall  be  exempt  from  exe- 
cution issued  upon  a  judgment  in  an  action  brought 
by  any  person  for  the  recovery  of  the  whole  or  any 
part  of  the  purchase  money  of  the  same  property.' 
{Subd.  20,  sec.  2982,  Rev.  Stats.)  Was  this  eighty 
dollars  any  part  of  the  purchase  money  of  the  prop- 
erty? It  was  loaned  to  be  used  in  purchasing  the 
property,  and  to  enable  the  plaintifif  to  purchase  it, 
and  was  actually  used  in  making  the  purchase,  and 


§  467  SHERIFFS  AND  CONSTABLES.  270 

was  paid  to  Murray  as  a  part  of  the  consideration  of 
it.  What  other  possible  language  could  be  used  that 
is  stronger  or  more  explicit  to  make  that  money  a  part 
of  the  purchase  money  of  the  property?  And  yet  the 
contention  is  that  it  was  not,  and  the  court  gave  that 
as  a  reason  for  the  finding.  The  fact  and  the  terms  of 
the  statute  are  too  plain  to  admit  of  argument.  It 
is  contended  that  the  one  who  loans  the  money  should 
have  actually  paid  it  to  the  person  who  sold  the  prop- 
erty.   The  statute  does  not  say  so." 


CHAPTER  XVII. 

REDEMPTION   FROM   EXECUTION  SALE. 

§  468.  The  powers  and  duties  of  the  sheriff. 

§  469.  In  what  cases  allowed. 

§  470.  Who  may  redeem. 

§471.  Though  defendant  has  conveyed,  he  may  redeem. 

§  472.  Who  cannot  redeem. 

§  473.  Redemption  where  tenants  in  common. 

§  474.  Time  of  and  payment  in  redemption. 

§  475.  Judgment  debtor  need  produce  no  certificate. 

§  476.  What  redemptioner  must  produce. 

§  477.  Successive  redemptions — Notice  and  payments. 

§  478.  Transfer  of  certificate  of  sale. 

§  479.  When   deficiency  on   judgment  need  not  be   paid   in 

redemption. 

§  480.  Judgment  debtor  not  compelled  to  pay  prior  liens. 

§481.  Partnership  judgment. 

§  482.  Redemption  of  real  estate  of  a  decedent. 

§  483.  Redemption  of  franchise. 

§  484.  Payments  in  redemption — To  whom  made. 

§  485.  Tender  equivalent  to  payment. 

§  486.  What  money  sheriflf  may  receive  in  redemption. 

§  487.  Redemption  in  treasury  notes. 

§  488.  Withdrawing  redemption  money  defeats  redemption. 

§  489.  Payment  under  protest. 

§  490.  Possession  pending  time  for  redemption. 

§  491.  Rents  and  profits  before  redemption. 

§  492.  Rents  pending  redemption — Decisions. 

§  493.  Rents — Attachment  will  not  lie. 

§  494.  Rights  of  creditors. 

§  495.  Various  decisions  in  redemption  cases. 

§  496.  Statutory  and  equitable  right  of  redemption. 

§  497.  Subsequent  judgment  lien. 

§  498.  Costs  of  appeal  in  redemption. 

§  499.  When  possession  and  title  pass. 

§  500.  Sale  of  franchise — Redemption  pf. 


§§468-471       SHERIFFS  AND  CONSTABLES.  272 

§  468.    The  powers  and  duties  of  the  sheriff  in 

relation  to  redemption  are  purely  statutory,  and  his 
acts  are  nugatory  unless  the  provisions  of  the  statute 
are  strictly  pursued.  Who  may  redeem,  and  how 
redemption  may  be  effected,  if  allowed  at  all,  are 
matters  as  to  which  we  must  look  to  the  statute  in 
each  particular  state. 

§  469.  In  what  cases  allowed.  When  real  es- 
tate or  any  interest  therein  is  sold  at  execution  sale 
redemption  by  the  judgment  debtor  or  by  any  of  the 
interested  persons  known  as  "redemptioners"  is  al- 
lowed within  a  year,  unless  the  estate  sold  be  less  than 
a  leasehold  interest  of  less  than  two  years'  unexpired 
term,  in  which  case  the  sale  is  absolute.  {California. 
Code  Civ.  Proc,  sees.  700,  702.) 

§  470.  Who  may  redeem.  Property  sold  sub- 
ject to  redemption,  or  any  part  sold  separately,  may 
be  redeemed  by  the  following  persons,  or  their  suc- 
cessors in  interest:— 

"i.  The  judgment  debtor,  or  his  successor  in  in- 
terest, in  the  whole  or  any  part  of  the  property. 

''2.  A  creditor  having  a  lien  by  judgment  or  mort- 
gage on  the  property  sold,  or  on  some  share  or  part 
thereof,  subsequent  to  that  on  which  the  property 
was  sold.  The  persons  mentioned  in  the  second  sub- 
division of  this  section  are  termed  redemptioners." 
{California.    Code  Civ.  Proc.,  sec.  701.) 

§  47 1 .    Though  defendant  has  conveyed,  he  may 

redeem.  A  defendant  in  execution  can  redeem  from 
an  execution  sale^  notwithstanding  he  has  conveyed 


273  REDEMPTION   FROM   EXECUTION.  §  472 

to  another  the  property  sold  under  execution.  Sec- 
tion 701  of  the  {California)  Code  of  Civil  Pro- 
cedure provides  in  terms  that  property  sold  subject  to 
redemption  may  be  redeemed  by  the  judgment  debtor 
or  his  successor  in  interest  in  the  whole  or  any  part 
of  the  property.  The  successor  in  interest  may  re- 
deem, but  the  judgment  debtor  may  also  do  so.  The 
statute  provides  that  the  judgment  debtor  as  such 
may  redeem — not  that  he  may  redeem  only  in  the 
event  that  he  has  no  successor  in  interest  in  the  prop- 
erty sold  under  execution.  The  court  holds  that  there 
is  no  good  reason  why  the  statute,  which  is  remedial 
in  its  character,  should  receive  a  narrow  construc- 
tion in  order  to  defeat  the  right  of  redemption  which 
it  intended  to  give.  It  might  be  that  the  judgment 
debtor  has  covenanted  with  his  successor  in  interest 
to  effect  a  redemption  from  the  sale,  and  a  variety 
of  other  cases  might  readily  be  imagined  in  which 
the  judgment  debtor,  even  though  he  had  sold  the 
property,  would  still  have  an  interest  in  effecting  a 
redemption  from  the  execution  sale.  {Yoakum  v. 
Bou'er,^\  Crt/.  539.) 

§  472.  Who  cannot  redeem.  Where  a  mort- 
gagor filed  a  homestead  subsequent  to  a  second 
mortgage,  and  both  mortgages  were  foreclosed,  the 
first  mortgage  and  part  of  the  second  being  paid,  and 
judgment  for  the  deficiency  due  the  second  mortgagee 
being  docketed,  it  was  held  in  Hershey  v.  Dennis, 
53  Cal.  jy^  that  the  lien  of  the  docketed  deficiency 
was  superseded  by  the  homestead,  and  that  the  second 
mortgagee  could  not  redeem  from  the  purchaser  at 
the  mortgage  sale. 


§  473  SHERIFFS  AND  CONSTABLES.  274 

§  473.    Redemption   where   tenants   in   common. 

Where  land  sold  under  judgment  is  embraced  in  one 
sale,  a  redemptioner  having  a  lien  upon  a  share  or 
part  of  the  land  sold  can  only  redeem  by  paying  the 
whole  of  the  purchase  money  and  redeeming  the 
whole  of  the  land;  and  in  such  case  he  succeeds  to 
the  whole  interest  of  the  purchaser.  Accordingly, 
where  land  was  sold  under  a  judgment  of  foreclosure 
against  tenants  in  common,  and  redeemed  by  a  judg- 
ment creditor  of  one  of  the  tenants,  who  in  due  course 
received  his  deed,  as  in  the  case  of  Eldridge  v. 
Wright,  55  Cal.  531,  it  was  held  that  the  redemp- 
tioner took  the  interests  of  both  tenants.  Mr.  Justice 
Thornton  delivered  the  opinion  of  the  court  in  this 
case.  Mr.  Justice  Sharpstein,  concurring  in  the 
judgment,  doubted  whether  the  redemptioner  had  a 
right  to  redeem  a  greater  interest  in  the  property 
sold  than  that  of  his  judgment  debtor;  but  was  of 
the  opinion,  as  the  purchaser  did  not  object  to  his 
redeeming  the  whole  property,  that  the  efifect  of  the 
transaction  was  to  vest  in  him  the  whole  interest  of 
the  purchaser.  Mr.  Justice  Myrick,  dissenting,  was 
of  opinion  that  the  redemptioner  was  subrogated  to 
the  rights  of  his  judgment  debtor,  and  thus  became 
the  owner  of  the  legal  title  formerly  held  by  him; 
and,  as  to  the  other  tenant,  that  he  acquired  an  equi- 
table lien  upon  his  interest  as  security  for  one  half 
of  the  redemption  money. 

A  owes  B  a  debt;  to  secure  it,  A  and  C  jointly 
mortgage  to  B  a  piece  of  land  owned  by  them  in  com- 
mon. Subsequently,  A  mortgages  his  undivided  in- 
terest in  the  land  to  secure  a  debt  to  D.  B  forecloses 
against  A  and  C,  and  buys  in  the  whole  land,  not 
making  D  a  party.    The  time  of  statutory  redemp- 


275  REDEMPTION   FROM    EXECUTION.      §§  474,  475 

tion  having  expired,  B  gets  a  sheriff's  deed:  Held, 
that  D,  as  subsequent  mortgagee,  may  redeem  A's, 
but  not  C's,  interest  in  the  land,  and  that  the  sale  is 
final  as  to  C's  interest,  D  not  being  a  necessary  party 
to  the  foreclosure.      [Kirkham  v.  Dupont,   14  Cal. 

563.) 

Redemption  from  execution  sale  by  one  tenant  in 
common,  after  foreclosure  of  mortgage  executed 
by  both,  restores  the  parties  to  their  original  title. 
{Calkins  V.  Steinbach,  66  Cal.  1 17,  4  Pac.  1 103.) 

§  474.    Time    of    and    payment    in    redemption. 

Section  702  of  the  California  Code  of  Civil  Proce- 
dure provides  that  "The  judgment  debtor,  or  redemp- 
tioner,  may  redeem  the  property  from  the  purchaser 
any  time  within  twelve  months  after  the  sale  on  pay- 
ing the  purchaser  the  amount  of  his  purchase,  with 
one  per  cent  per  month  thereon  in  addition,  up  to  the 
time  of  redemption,  together  with  the  amount  of 
any  assessment  or  taxes  which  the  purchaser  may 
have  paid  thereon  after  purchase,  and  interest  on  such 
amount.  And  if  the  purchaser  be  also  a  creditor, 
having  a  prior  lien  to  that  of  the  redemptioner,  other 
than  the  judgment  under  which  said  purchase  was 
made,  the  amount  of  such  lien  with  interest." 

§  475.  Judgment  debtor  need  produce  no  cer- 
tificate. It  is  not  necessary  for  the  judgment  debtor, 
in  effecting  a  redemption,  to  produce  a  certificate  or 
other  credential  required  by  statute  to  be  produced 
in  case  of  redemption  by  a  judgment  or  mortgage 
creditor.  Those  provisions  do  not  apply  to  the  judg- 
ment debtor.     (Yoakum  v.  Bower,  51   Cal.  539.) 


§§  47^,  477       SHERIFFS  AND  CONSTABLES.  276 

§  476.  What  redemptioner  must  produce.  Be- 
sides giving  the  statutory  notice  and  making  the  pay- 
ments required,  the  redemptioner  must  establish  his 
right  to  redeem,  and  for  this  purpose  must,  under 
the  California  practice,  "produce  to  the  officer  or 
person  from  whom  he  seeks  to  redeem,  and  serve 
with  his  notice  to  the  sheriff: — 

"i.  A  copy  of  the  docket  of  the  judgment  under 
which  he  claims  the  right  to  redeem,  certified  by  the 
clerk  of  the  court,  or  of  the  county  where  the  judg- 
ment is  docketed,  or  if  he  redeem  upon  a  mortgage 
or  other  lien,  a  note  of  the  record  thereof,  certified 
by  the  recorder; 

"2.  A  copy  of  any  assignment  necessary  to  estab- 
lish his  claim,  verified  by  the  affidavit  of  himself,  or 
of  a  subscribing  witness  thereto; 

"3.  An  affidavit  by  himself  or  his  agent,  showing 
the  amount  then  actually  due  on  the  lien."  (Cali- 
fornia.    Code  Civ.  Proc,  sec.  705.) 

When  the  redemption  is  attempted  to  be  effected 
through  the  sheriff,  he  has  no  authority,  either  to 
receive  the  redemption  money  from  one  claiming  the 
right  to  redeem  under  a  judgment,  or  to  execute  a 
deed  to  him,  unless  the  redemptioner  complies  strict- 
ly with  the  provisions  of  the  statute  and  produces  a 
copy  of  the  docket  of  the  judgment  under  which  he 
claims  the  right  to  redeem,  or  such  other  paper  as 
the  statute  expressly  requires  to  be  produced.  He 
should  bear  in  mind  that  a  transcript  of  a  judgment 
is  not  equivalent  to  a  copy  of  the  docket  of  the  judg- 
ment. 

§  477.  Successive  redemptions — Notice  and  pay- 
ments.     Section  703  of  the  California  Code  of  Civil 


277  REDEMPTION   FROM    EXECUTION.  §  477 

Procedure  provides  that  "if  property  be  so  redeemed 
by  a  redemptioner,  another  redemptioner  may,  with- 
in sixty  days  after  the  last  redemption,  again  redeem 
it  from  the  last  redemptioner  on  paying  the  sum 
paid  on  such  last  redemption,  with  two  per  cent  there- 
on in  addition,  and  the  amount  of  any  assessment  or 
taxes  which  the  last  redemptioner  may  have  paid 
thereon  after  the  redemption  by  him,  with  interest 
on  such  amount,  and,  in  addition,  the  amount  of  any 
liens  held  by  said  last  redemptioner  prior  to  his 
own,  with  interest;  but  the  judgment  under  which 
the  property  was  sold  need  not  be  so  paid  as  a  lien. 
The  property  may  be  again,  and  as  often  as  a  re- 
demptioner is  so  disposed,  redeemed  from  any  pre- 
vious redemptioner  within  sixty  days  after  the  last 
redemption,  on  paying  the  sum  paid  on  the  last 
previous  redemption,  with  two  per  cent  thereon  in 
addition,  and  the  amounts  of  any  assessments  or  taxes 
which  the  last  previous  redemptioner  paid  after  the 
redemption  by  him,  with  interest  thereon,  and  the 
amount  of  any  liens,  other  than  the  judgment  under 
w^hich  the  property  was  sold,  held  by  the  last  re- 
demptioner previous  to  his  own,  with  interest.  Writ- 
ten notice  of  redemption  must  be  given  to  the  sheriff 
and  a  duplicate  filed  with  the  recorder  of  the  county, 
and  if  any  taxes  or  assessments  are  paid  by  the  re- 
demptioner, or  if  he  has  or  acquires  any  lien  other 
than  that  upon  which  the  redemption  was  made, 
notice  thereof  must  in  like  manner  be  given  to  the 
sheriff  and  filed  with  the  recorder;  and  if  such  notice 
be  not  filed,  theoroperty  may  be  redeemed  without 
paying  such  tax,  assessment,  or  lien.  If  no  redemp- 
tion be  made  within  twelve  months  after  the  sale, 
the  purchaser,  or  his  assignee,  is  entitled  to  a  con- 
veyance; or  if  so  redeemed,  whenever  sixty  days  have 


§  4/8  SHERIFFS  AND  CONSTABLES.  278 

elapsed,  and  no  other  redemption  has  been  made,  and 
notice  thereof  given,  and  the  time  for  redemption  has 
expired,  the  last  redemptioner,  or  his  assignee,  is 
entitled  to  a  sheriff's  deed;  but,  in  all  cases,  the  judg- 
ment debtor  shall  have  the  entire  period  of  twelve 
months  from  the  date  of  the  sale  to  redeem  the  prop- 
erty. If  the  judgment  debtor  redeem,  he  must  make 
the  same  payments  as  are  required  to  effect  a  redemp- 
tion by  a  redemptioner.  If  the  debtor  redeem,  the 
effect  of  the  sale  is  terminated,  and  he  is  restored  to 
his  estate.  Upon  a  redemption  by  the  debtor,  the  per- 
son to  whom  the  payment  is  made  must  execute  and 
deliver  to  him  a  certificate  of  redemption,  acknowl- 
edged or  proved  before  an  officer  authorized  to  take 
acknowledgments  of  conveyances  of  real  property. 
Such  certificate  must  be  filed  and  recorded  in  the 
office  of  the  recorder  of  the  county  in  which  the  prop- 
erty is  situated,  and  the  recorder  must  note  the  record 
thereof  in  the  margin  of  the  record  of  the  certificate 
of  sale." 

§  478.  Transfer  of  certificate  of  sale.  The  sim- 
plest manner  in  which  redemption  may  be  effected 
is  through  the  purchaser  at  sheriff's  sale,  by  paying 
to  such  purchaser  the  redemption  money  and  re- 
ceiving from  him  the  requisite  transfer,  if  he  will 
recognize  the  right  of  the  applicant  to  redeem  and 
waive  the  usual  formalities.  But  if  the  redemption 
is  sought  to  be  made  through  the  officer  who  made 
the  sale,  all  the  requirements  of  the  statute  must  be 
complied  with  to  secure  the  redemption. 

A  quit-claim  deed  from  the  holder  of  the  sheriff's 
certificate  after  the  time  for  redemption  has  expired 
is  equivalent  to  an  assignment  of  the  same,  and  if  th« 


279  REDEMPTION   FROM   EXECUTION.  §  479 

sheriff  afterward  execute  a  deed  to  the  purchaser, 
the  same  is  void  as  between  the  parties.  {Ward  v. 
Dougherty,  jc,  Cal.  240,  7  Am.  St.  Rep.  151,  17  Pac. 

I93-) 

§  479.  When  deficiency  on  judgment  need  not 
be  paid  in  redemption.  During  the  time  for  re- 
demption the  legal  title  is  in  the  mortgagor,  and  may 
be  conveyed  by  him,  and  the  grantee  becomes  entitled 
to  redeem  without  paying  to  the  mortgagee  the  un- 
satisfied portion  of  the  judgment  under  which  the 
property  was  sold  to  him,  and  the  judgment  for  the 
deficiency  is  not  a  lien  on  the  land. 

Where,  upon  a  foreclosure  of  a  mortgage,  the 
mortgagee  purchases  the  land  for  a  sum  less  than  the 
amount  of  the  judgment,  and  dockets  a  judgment  for 
the  deficiency,  the  purchaser  from  the  mortgagor  of 
the  land,  pending  the  time  for  redemption,  is  entitled 
as  successor  in  interest  to  redeem  from  the  mortgagee, 
without  paying  the  amount  of  the  deficiency.  The 
former  rule,  that  when  real  estate  which  is  subject 
to  a  judgment  lien  is  sold  on  an  execution  on  the  judg- 
ment to  the  judgment  creditor,  for  a  sum  less  than 
the  whole  amount  of  the  judgment,  the  judgment 
creditor  continues  to  be  "a  creditor  having  a  lien" 
for  the  unsatisfied  portion  of  the  judgment  upon  the 
property  sold  under  the  execution,  and  that  neither 
the  judgment  debtor  nor  a  redemptioner  with  a  sub- 
sequent lien  could  redeem  without  paying  said  judg- 
ment has  been  changed  by  the  Code  of  Civil  Proce- 
dure.     (Simpson  v.  Castle,  52  Cal.  645.) 

A  judgment  docketed  for  a  deficiency  after  the  sale 
of  the  mortgaged  premises  under  a  judgment  of  fore- 
closure is  not  a  lien  upon  the  premises  sold  if  they 


§  480  SHERIFFS  AND  CONSTABLES.  280 

are  purchased  by  any  person  other  than  the  mortgage 
debtor.     {Black  v.  Gerichten,  58  Cal.  56.) 

§  480.  Judgment  debtor  not  compelled  to  pay 
prior  liens.  In  the  case  of  Sharp  v.  Miller,  47  Cal. 
82,  the  court  held  that  the  judgment  debtor  is  not 
obliged  to  pay  other  liens  which  the  purchaser  may 
have  on  the  property.  The  code  makes  a  distinction 
between  a  redemption  by  the  judgment  debtor  and 
by  a  creditor  holding  a  lien  on  the  property.  Under 
section  702  of  the  Code  of  Civil  Procedure  of  Cali- 
fornia, "the  judgment  debtor,  or  redemptioner,  may 
redeem  the  property  from  the  purchaser  any  time 
within  twelve  months  after  the  sale  on  paying  the 
purchaser  the  amount  of  his  purchase,"  etc.  The  same 
section  further  provides  that  "if  the  purchaser  be 
also  a  creditor,  having  a  prior  lien  to  that  of  the 
redemptioner,  other  than  the  judgment  under  which 
said  purchase  was  made,"  he  must  also  pay  the 
amount  of  such  lien.  Section  701  defines  a  redemp- 
tioner to  be  "A  creditor  having  a  lien  by  judgment  or 
mortgage  on  the  property  sold,  or  on  some  share  or 
part  thereof,  subsequent  to  that  on  which  the  property 
was  sold."  The  judgment  debtor  is  not  a  "redemp- 
tioner" in  the  sense  in  which  the  term  is  employed 
in  section  702  of  the  Code  of  Civil  Procedure. 

But  if  a  "redemptioner,"  or,  in  other  words,  a 
creditor,  holding  a  subsequent  lien  on  the  property, 
redeems,  he  must  also  pay  to  the  purchaser  any  liens 
he  may  have  prior  to  that  of  the  redemptioner  other 
than  that  for  which  the  property  was  sold.  The 
reason  for  the  distinction  made  between  the  judg- 
ment debtor  and  a  redemptioner  is  that,  if  the  latter 
were  permitted  to  redeem  without  paying  the  prior 


28 1  REDEMPTION   FROAl   EXECUTION.      §§481-483 

lien  held  by  the  purchaser,  the  title  would  pass  to 
the  red^mptioner  and  the  lien  of  the  purchaser  would 
be  defeated.  But  if  the  judgment  debtor  redeem,  he 
is  restored  to  his  estate,  and  the  lien  held  by  the  pur- 
chaser will  be  available. 

§481.  Partnership  judgment.  Under  section 
702  of  the  Code  of  Civil  Procedure  of  California 
(sec.  474,  ante) ,  a  judgment  debtor  whose  lands  have 
been  sold  under  execution  may  redeem  the  same  from 
the  purchaser  without  paying  a  prior  judgment 
against  him  held  by  a  partnership  of  which  the  pur- 
chaser is  a  member.  {Campbell  v.  Oaks,  68  Cal. 
222,  9  Pac.  77.) 

§  482.    Redemption  of  real  estate  of  a  decedent. 

Section  1505  of  the  Code  of  Civil  Procedure  of  Cali- 
fornia provides  that  "A  judgment  creditor  having 
a  judgment  which  was  rendered  against  the  testator 
or  intestate  in  his  lifetime,  may  redeem  any  real 
estate  of  the  decedent  from  any  sale  under  foreclos- 
ure or  execution,  in  like  manner  and  with  like  efifect 
as  if  the  judgment  debtor  were  still  living.'' 

§  483.  Redemption  of  franchise.  A  corporation 
may  at  any  time  within  one  year  after  execution  sale 
redeem  its  franchise  by  paying  or  tendering  to  the 
purchaser  thereof  the  sum  paid  therefor  with  ten 
per  cent  interest  thereon  but  without  any  allowance 
for  the  toll  which  he  may  in  the  mean  time  have  re- 
ceived; and  upon  such  payment  or  tender,  the  fran- 
chise and  all  the  rights  and  privileges  thereof  revert 
and  belong  to  the  corporation  as  if  no  such  sale  had 
been  made.     {California.     Civ.  Code,  sec.  392.) 


§§  484-487       SHERIFFS  AND  CONSTABLES.  282 

§  484.     Payments     in     redemption  —  To     whom 

made.  The  payments  for  redemption  of  the  prop- 
erty sold  may  be  made  to  the  purchaser  or  prior  re- 
demptioner,  or  for  him  to  the  officer  who  made  the 
sale.  When  the  judgment  under  which  the  sale  has 
been  made  is  payable  in  a  specified  kind  of  money 
or  currency,  payments  must  be  made  in  the  same 
kind  of  money  or  currency. 

§  485.  Tender  equivalent  to  payment.  A  prop- 
er tender  of  the  full  amount  due  on  redemption  of 
real  property  extinguishes  the  purchaser's  lien,  and 
is  equivalent  to  payment.  (Hershey  v.  Dennis,  53 
Cal.  77.) 

§  486.  What  money  sherift  may  receive  in  re- 
demption. The  sherifif  is  the  special  agent  of  the 
purchaser  of  land,  authorized  to  receive  the  redemp- 
tion money  for  him,  and  as  such  may  receive  in  re- 
demption any  lawful  money,  unless  the  judgment  un- 
der which  the  sale  was  made  was  rendered  payable 
in  a  particular  kind  of  money.  A  payment  to  the 
sherifif  for  the  redemption  of  land  sold  under  execu- 
tion cannot  be  made  in  certified  checks.  (People 
ex  rel.  Mulford  v.  May  hew,  26  Cal.  655.) 

§  487.  Redemption  in  treasury  notes.  It  is  held 
in  the  case  of  People  ex  rel.  Mulford  v.  Mayhew, 
26  Cal.  656,  that  the  obligation  of  a  judgment  cred- 
itor or  redemptioner  to  pay  a  certain  amount  of 
money  in  order  to  exercise  the  statutory  right  of  re- 
demption from  a  sale  of  land  made  by  a  sherifif  is 
a  debt  within  the  meaning  of  the  act  of  Congress 
making  treasury  notes   lawful  money  and   a   legal 


283  REDEMPTION   FROM   EXECUTION.      §§  488-490 

tender,  in  payment  of  debts.  Land  sold  at  sheriff's 
sale  under  a  judgment  payable  generally  in  money 
without  specifying  a  particular  kind  of  money  may 
be  redeemed  with  treasury  notes. 

§  488.    Withdrawing  redemption  money  defeats 

redemption.  If  the  judgment  debtor  whose  land  has 
been  sold  on  the  judgment  deposits  with  the  sheriff 
before  the  time  for  redemption  expires  money  suffi- 
cient to  redeem  it  from  the  sale,  and  the  sheriff,  after 
the  time  for  redemption  expires,  executes  and  de- 
livers to  the  purchaser  a  deed,  the  judgment  debtor, 
if  he  would  claim  the  benefit  of  the  redemption,  must 
not  withdraw  the  money  from  the  sheriff,  for  by 
withdrawing  the  money  he  ratifies  the  act  of  the 
sheriff  in  delivering  the  deed.  {JVilkins  v.  Wilson, 
51  Cal.  212.) 

§  489.  Payment  under  protest.  When  a  re- 
demptioner,  under  the  statute,  pays  to  the  sheriff  an 
excess  of  money,  under  protest  as  to  the  excess,  the 
payment  is  not  compulsory.  (McMillan  v.  Fischer, 
14  Cal.  232.) 

§  490.    Possession  pending  time  for  redemption. 

A  purchaser  at  sheriff's  sale  does  not  acquire  title, 
but  only  a  lien  until  after  the  period  limited  for 
redemption.  The  California  statute  allowing  a  re- 
demption of  real  property  sold  at  judicial  sales  and 
allowing  the  purchaser  to  collect  the  rents  of  the 
property  plainly  contemplates  that  the  possession 
shall  not  change  to  the  purchaser  until  the  expira- 
tion of  the  time  prescribed  as  a  limit  to  the  redemp- 
tion.    Section  564  of  the  Code  of  Civil  Procedure 


§  491  SHERIFFS  AND  CONSTABLES.  284 

provides  that  a  receiver  may  be  appointed  in  certain 
contingencies.  Section  706  of  the  Code  of  Civil  Pro- 
cedure gives  the  court  power  to  restrain  the  com- 
mission of  waste  on  the  property  and  provides  that 
"it  is  not  waste  for  the  person  in  possession  of  the 
property  at  the  time  of  the  sale,  or  entitled  to  pos- 
session afterward,  during  the  period  allowed  for 
redemption,  to  continue  to  use  it  in  the  same  manner 
in  which  it  was  previously  used."  These  provisions 
most  clearly  contemplate  an  adverse  possession  to 
the  purchaser  until  the  time  has  expired  for  re- 
demption. 

§491.  Rents  and  profits  before  redemption.  Un- 
der the  practice  in  California  and  Nevada  "The  pur- 
chaser, from  the  time  of  the  sale  until  a  redemption, 
and  a  redemptioner,  from  the  time  of  his  redemption 
until  another  redemption,  is  entitled  to  receive,  from 
the  tenant  in  possession,  the  rents  of  the  property  sold, 
or  the  value  of  the  use  and  occupation  thereof.  But 
when  any  rents  or  profits  have  been  received  by  the 
judgment  creditor  or  purchaser,  or  his  or  their  as- 
signs, from  the  property  thus  sold  preceding  such 
redemption,  the  amounts  of  such  rents  and  profits 
shall  be  a  credit  upon  the  redemption  money  to  be 
paid;  and  if  the  redemptioner  or  judgment  debtor, 
before  the  expiration  of  the  time  allowed  for  such 
redemption,  demands  in  writing  of  such  purchaser  or 
creditor,  or  his  assigns  a  written  and  verified  state- 
ment of  the  amounts  of  such  rents  and  profits  thus 
received,  the  period  for  redemption  is  extended  five 
days  after  such  sworn  statement  is  given  by  such  pur- 
chaser or  his  assigns  to  such  redemptioner  or  debtor. 
If  such  purchaser  or  his  assigns  shall,  for  a  period 


285  REDEMPTION   FROM   EXECUTION.  §  492 

of  one-  month  from  and  after  such  demand,  fail  or 
refuse  to  give  such  statement,  such  redemptioner  or 
debtor  may  bring  an  action  in  any  court  of  compe- 
tent jurisdiction  to  compel  an  accounting  and  dis- 
closure of  such  rents  and  profits,  and  until  fifteen 
days  from  and  after  the  final  determination  of  such 
action,  the  right  of  redemption  is  extended  to  such 
redemptioner  or  debtor."  {California.  Code  Civ. 
Proc,  sec.  707.) 

§  492,    Rents    pending    redemption  —  Decisions. 

Where  the  owner  of  mortgaged  premises  leases  the 
same  for  a  term  of  years,  and  the  rent  is  paid  in  ad- 
vance by  the  tenant:  Held,  that  the  purchaser  under 
the  mortgage  sale  can  require  the  tenant  to  pay  the 
rent  over  again  to  him.  After  sale  and  before  the 
term  of  redemption  has  expired  the  purchaser  is  en- 
titled to  collect  the  rents.  (McDevitt  v.  Sullivan, 
8C«/.  593.) 

A  purchaser  of  land  at  sheriff's  sale  can  maintain 
an  action  for  rent  against  the  tenant  in  possession  un- 
der the  judgment  debtor  before  the  expiration  of  the 
six  months  allowed  for  redemption,  and  as  often  as 
the  rent  becomes  due  under  the  terms  of  the  lease 
when  he  purchased.  {Reynolds  v.  Lathrop,  7  Cal. 
43.)  The  sale  operates  as  an  assignment  of  the  lease 
for  the  time. 

The  purchaser  at  sheriff's  sale  of  a  "water  ditch" 
is  entitled  to  the  rents  and  profits  thereof  from  the 
date  of  the  sale  until  the  expiration  of  the  time  for 
redemption  as  well  from  the  judgment  debtor  in 
possession  as  from  his  tenant,  and  where  a  judgment 
debtor  remains  in  possession  of  a  "water  ditch" 
after  sherifif's  sale,  and  collects  the  rents  and  profits 


§  493  SHERIFFS  AND  CONSTABLES.  286 

during  the  six  months  following,  he  is  a  trustee  of 
the  fund  for  the  purchaser  at  the  sale,  and  if  the  fund 
be  in  danger  of  loss  a  bill  in  equity  to  account  will 
lie.  {Harris  v.  Reynolds,  13  Cal.  515,  73  Am.  Dec. 
600.) 

A  judgment  debtor  who  redeemed  his  property 
within  twenty-one  days  after  the  sheriff's  sale,  but 
who  had  received  from  his  tenants  in  possession  four 
hundred  and  forty-five  dollars  rent  between  the  day 
of  sale  and  the  redemption,  held  liable  to  the  pur- 
chaser at  the  sale  for  the  amount  so  received.  (Kline 
V.  Chase,  17  Cal.  596.  Also  cited  as  authority  in 
Walls  V.  PValker,  37  Cal.  432,  99  Am.  Dec.  290; 
and  see  Knight  v.  Truett,  18  Cal.  113;  Raun  v. 
Reynolds,  18  Cal.  289;  Hill  v.  Taylor,  22  Cal.  191; 
Henry  v.  Evarts,  30  Cal.  425;  Webster  v.  Cook,  38 
Cal.  425  ;  Page  v.  Rogers,  31  Cal.  294.) 

§  493.  Rents — Attachment  will  not  lie.  While 
the  statute  gives  to  the  purchaser  the  right  to  receive 
the  rents  of  the  property  sold  pending  the  time  for 
redemption,  he  cannot  enforce  such  right  by  writ  of 
attachment  against  the  tenant's  property.  In  the  case 
of  Walker  v.  McCusker,  65  Cal.  360,  4  Pac.  206,  the 
court  say: — 

"This  action  was  brought  to  recover  of  the  defend- 
ant, as  tenant  in  possession  of  real  estate  purchased 
by  plaintiff  on  decree  of  foreclosure  and  sale,  the 
sum  of  $1,200,  value  of  the  use  and  occupation  from 
the  day  of  sale  to  the  making  of  the  deed.  The  plain- 
tiff sued  out  a  writ  of  attachment  by  which  property 
was  attached;  the  defendant  moved  that  the  attach- 
ment be  dissolved;  the  court  below  denied  the  mo- 
tion, and  the  appeal  from  the  order  of  denial  is 
before  us. 


287  REDEMPTION   FROM   EXECUTION.  §494 

"Section  707  of  the  Code  of  Civil  Procedure  de- 
clares that  the  purchaser,  from  the  time  of  sale,  is 
entitled  to  receive  from  the  tenant  in  possession  th& 
rents  of  the  property  sold  or  the  value  of  the  use  and 
occupation. 

"The  liability  of  the  tenant  in  possession  to  the 
purchaser,  for  rents  or  use  and  occupation  from  the 
day  of  sale  to  the  expiration  of  the  time  for  redemp- 
tion, is  a  statutory  liability  merely,  and  exists  without 
the  assent  of  the  person  in  possession.  It  is  not  a 
liability  founded  on  a  contract  expressed  or  implied 
within  the  meaning  of  section  537  of  the  Code  of 
Civil  Procedure,  authorizing  the  issuance  of  an  at- 
tachment." 

§  494.  Rights  of  creditors.  After  the  execution 
of  a  mortgage  upon  real  estate,  a  judgment  was  ren- 
dered against  the  mortgagor  which  became  a  lien 
upon  the  mortgaged  property;  the  mortgagee  then 
foreclosed  the  mortgage,  making  the  mortgagor  alone 
a  party  defendant,  had  the  property  sold  under  the 
decree,  became  the  purchaser  and  obtained  a  sheriff's 
deed;  afterwards  the  judgment  creditor  procured  an 
execution  upon  his  judgment  and  had  the  property 
advertised  for  sale;  the  holder  of  the  title  under  the 
sheriff's  deed  filed  a  bill  in  equity  to  enjoin  the  sale: 
Held,  that  he  was  not  entitled  to  an  injunction,  and 
that  the  judgment  creditor  had  a  right  to  sell  any 
interest  in  the  land  held  by  the  judgment  debtor  at 
the  rendition  of  the  judgment  or  levy  of  the  execu- 
tion. Held,  further,  that  the  judgment  creditor's 
equitable  right  of  redemption  not  having  been  cut 
off  by  the  foreclosure,  he  might  during  the  two  years 
that  his  judgment  was  a  lien  upon  the  premises  sell 


§  495  SHERIFFS  AND  CONSTABLES.  288 

under  an  execution  and  purchase  the  legal  title  of 
the  mortgagor,  not  only  that  he  might  assert  his 
right  of  redemption  at  any  time  within  the  period 
allowed  by  the  statute  of  limitations,  but  also,  that  he 
might  realize  any  other  benefit  or  advantage  that 
might  accrue  to  him  from  the  sale.  (Alexander  v. 
Greenicood,  24  Cal.  506.) 

§  495.    Various    decisions    in    redemption    cases. 

A  creditor  of  the  mortgagor  obtaining  a  judgment 
after  sale  under  the  decree  of  foreclosure,  but  before 
the  execution  of  the  conveyance  thereunder,  acquires 
a  lien  on  the  estate  entitling  him  to  redeem.  (Mc- 
Millan  v.  Richards,  9  CaL  365,  70  Am.  Dec.  655.) 

A  subsequent  mortgagee  would  have  a  right  to 
redeem  premises  from  a  sale  under  a  judgment  upon 
mechanics'  lien  by  paying  the  money  justly  due,  in- 
terest, costs,  etc.,  he  not  having  been  a  party  to  the 
suit  by  the  lienholder.  (Gamble  v.  JVoll,  15  Cal. 
510.) 

A  mortgagee  of  the  defendant  in  execution,  who 
has  failed  to  record  his  mortgage  until  after  the  sale, 
has  no  lien  or  intervening  rights  as  against  the  pur- 
chaser; he  can  redeem  under  the  statute;  if  he  fails 
to  do  so  a  court  of  equity  will  not  interpose.  (Smith 
v.  Randall,  6  Cal.  53,  65  Am.  Dec.  475.) 

The  equitable  right  to  redeem  property  sold  under 
a  decree  of  foreclosure  held  by  subsequent  encum- 
brancers is  merged  into  a  statutory  right,  not  by  any 
force  given  to  the  language  of  the  decree,  but  by  the 
fact  that  they  have  had  their  day  in  court  and  an 
opportunity  of  setting  up  any  equities  they  possessed. 
After  the  decree  they  stand  as  to  their  right  of  re- 
demption in  the  same  position  as  ordinary  judgment 
debtors.     (Montgomery  v.  Tutt,  11  Cal.  307.) 


289  REDEMPTION   FROM   EXECUTION.  §  495 

The  right  of  the  mortgagor  to  redeem  is  not 
affected  bv  the  fact  that  he  may  have  had  no  title 
to  the  mortgaged  property,  nor  can  the  mortgagee 
refuse  the  redemption  money,  if  tendered,  because 
the  mortgagor  had  no  title  to  mortgage.  {Loren- 
zana  v.  Camarilla,  45  Cal.  125.) 

A  deed  conveying  land  and  in  express  terms  re- 
serving to  the  grantor  a  lien  to  secure  the  payment 
of  two  promissory  notes  for  a  part  of  the  price 
creates  an  equitable  mortgage  upon  the  land.  Such 
lien  is  more  than  a  vendor's  lien  and  is  not  lost  by 
the  assignment  of  the  promissory  notes.  (Dingly 
v.  Bank  of  Ventura,  57  Cal.  467.)  Such  a  lien  may 
be  foreclosed  as  a  mortgage,  and  there  is  the  same 
right  of  redemption  for  a  limited  period  after  a  fore- 
closure sale. 

In  the  case  of  Rumpp  v.  Gerkins,  59  Cal.  496, 
Leonis,  a  prior  mortgagee,  brought  suit  for  fore- 
closure, obtained  the  usual  decree,  and  the  writ  was 
placed  in  the  sheriff's  hands  for  execution.  The  mort- 
gagees then  executed  a  conveyance  of  the  premises  to 
Leonis,  it  not  being  intended  by  the  latter  that  his  se- 
curity should  merge  in  the  conveyance  or  that  his  lien 
should  be  extinguished.  Following,  Leonis  pur- 
chased the  premises  at  the  sheriff's  sale.  Plaintiff, 
claiming  under  a  junior  mortgage  not  affected  by  the 
prior  suit,  joined  Leonis  as  defendant  in  an  action 
of  foreclosure,  claiming  the  conveyance  to  Leonis 
operated  a  merger  of  his  mortgage  lien  upon  the 
premises.  The  court  adjudged  that  the  lien  of  Leonis 
was  not  merged,  that  plaintiff  should  redeem  the 
property  from  Leonis  by  paying  the  latter  the  amount 
bid  at  the  sheriff's  sale. 


§  49^  SHERIFFS  AND  CONSTABLES.  290 

§  496.  Statutory  and  equitable  right  of  redemp- 
tion. The  right  to  redeem  under  the  statute  from  a 
sale  on  execution  exists  in  some  instances  where  there 
is  no  equity,  and  in  other  instances  in  connection  with 
the  equitable  right.  Parties  to  the  suit  in  which  the 
judgment  is  rendered  under  which  the  sale  is  made 
are  restricted  to  the  twelve  months  given  by  statute. 
Parties  acquiring  interests  pending  suits  to  enforce 
previously  existing  liens  or  after  judgment  docketed 
or  sale  made  have  no  equity  and  are  confined  to  the 
rights  given  by  the  statute;  but  parties  obtaining  in- 
terests subsequent  to  the  plaintiff  and  before  suit 
brought,  who  are  made  parties  in  such  suit,  possess 
both  the  equitable  and  statutory  right.  They  may 
redeem  under  the  statute,  or  they  may  file  their  bill 
in  equity.  Where  a  mechanics'  lien  attached  on  cer- 
tain premises  January  18,  1856,  and  a  mortgage  was 
placed  on  the  same  premises  January  21,  1856,  and 
a  suit  was  brought  subsequent  to  the  execution  and 
record  of  the  mortgage  to  enforce  the  mechanics' 
lien,  in  which  suit  the  mortgagees  were  not  made 
parties  and  under  the  decree  rendered  in  such  suit 
a  sale  was  made  and  after  the  expiration  of  the  time 
for  redemption  no  redemption  being  had,  a  deed  was 
executed  to  the  assignees  of  the  sheriff's  certificate,  it 
was  held  in  Whitney  v.  Higgins,  10  Cal.  547,  70  Am. 
Dec.  748,  that  the  right  of  the  mortgagees  to  redeem 
the  premises  by  paying  off  the  encumbrance  of  the 
mechanics'  lien  was  not  affected  by  the  decree  and 
the  proceedings  thereunder  and  that  the  purchasers 
of  the  premises  upon  a  decree  of  foreclosure  of  the 
mortgage,  having  received  his  (the  sheriff's)  deed 
upon  such  purchase,  were  entitled  to  the  same  right 
to  redeem. 


291  REDEMPTION   FROM   EXECUTION.      §§497-499 

§  497.  Subsequent  judgment  lien.  The  payment 
by  a  judgment  debtor  of  the  judgment  after  a  sher- 
iff's sale  extinguishes  the  lien;  and  the  fact  that  he 
takes  a  transfer  of  the  certificate  and  the  sherifif's 
deed  instead  of  a  certificate  of  redemption  cannot 
divest  the  lien  of  a  subsequent  judgment.  (McCarthy 
V.  Christie,  13  Cal.  79.) 

The  purchaser  at  an  execution  sale,  before  con- 
veyance to  him  has  a  right  to  redeem  the  prop- 
erty sold  on  the  enforcement  of  a  prior  lien;  after 
conveyance  to  him  he  has  the  same  right  as  successor 
in  interest  to  the  debtor  or  mortgagor.  (McMillan 
V.  Richards,  9  Cal.  413,  70  Am.  Dec.  655.) 

§  498.  Costs  of  appeal  in  redemption.  Where 
a  judgment  is  against  two,  one  only  of  whom  appeals, 
and  the  appeal  is  dismissed  with  twenty  per  cent 
damages,  the  damages  with  the  costs  do  not  become 
part  of  the  original  judgment,  and  the  redemptioner 
is  not  bound  to  pay  them  when  he  redeems  from  a 
sale  under  the  judgment.  (McMillan  v.  Fischer, 
14  Cal.  232.) 

§  499.  When  possession  and  title  pass.  The  title 
to  land  sold  at  execution  sale  does  not  pass  until  the 
execution  and  delivery  of  the  deed.  The  legal  estate 
exists  in  the  judgment  debtor  after  expiration  of  the 
time  to  redeem  until  execution  of  the  conveyance  to 
the  purchaser.  In  the  absence  of  statutory  provision 
to  the  contrary,  the  provisions  allowing  a  redemp- 
tion of  property  sold  at  judicial  sale  contemplate  that 
the  possession  shall  not  change  to  the  purchaser  until 
the  expiration  of  the  time  limited  for  redemption. 
(Guy  V.  Middleton,  5  Cal.  392.) 


§  500  SHERIFFS  AND  CONSTABLES.  292 

§  500.  Sale  of  franchises — Redemption  of.  Sec- 
tion 388  of  the  Civil  Code  provides  that  for  the  satis- 
faction of  any  judgment  against  any  person,  company, 
or  corporation  having  any  franchise  other  than  the 
franchise  of  being  a  corporation,  such  franchise  and 
all  the  rights  and  privileges  thereof  may  be  levied 
upon  and  sold  under  execution  in  the  same  manner 
and  with  the  same  effect  as  any  other  property. 

Section  391  of  the  Civil  Code  provides  that  the 
person,  company,  or  corporation  whose  franchise  is 
sold  as  in  this  article  provided  in  all  other  respects 
retains  the  same  powers,  is  bound  to  the  discharge  of 
the  same  duties,  and  is  liable  to  the  same  penalties 
and  forfeitures  as  before  such  sale. 

Section  392  of  the  Civil  Code  provides  that  re- 
demption from  any  such  sale  may  be  had  as  provided 
in  the  Code  of  Civil  Procedure  in  the  case  of  re- 
demptions from  sales  of  real  estate  on  execution. 

Section  393  of  the  Civil  Code  provides  that  the 
sale  of  any  franchise  under  execution  must  be  made 
in  the  county  in  which  the  corporation  has  its  prin- 
cipal place  of  business  or  in  which  the  property  or 
some  portion  thereof  is  situated. 


§5oi 

§  502 
§503 
§504 
§505 
§506 

§507 
§508 

§509 
§510 

§511 
§512 


CHAPTER  XVIII. 
sheriff's  deeds. 

When  deed  is  due. 

When  deed  takes  effect. 

What  sheriff's  deed  conveys. 

Recitals  in  sheriff's  deed. 

Parol  evidence  not  admissible. 

Who  estopped  by  recitals  in  sheriff's  deed. 

Against  whom  officer's  deed  is  evidence. 

How  meaning  of  deed  is  ascertained. 

Against  whom  officer's  deed  not  evidence. 

Premature  sheriff's  deed  is  void. 

When  mandamus  to  sheriff  will  not  lie. 

Deed  by  deputy. 


§  501.  When  deed  is  due.  The  purchaser,  or  his 
assignee,  is  entitled  to  a  sheriff's  deed  after  the  ex- 
piration of  the  period  fixed  by  the  statute  for  redemp- 
tion. This  period  varies  under  the  statutes  in  differ- 
ent states,  and  in  some  there  is  no  redemption,  the 
sale  being  absolute  in  the  first  instance.  (See  sec;. 
474,  ante.) 

The  term  "months"  used  in  the  statute  fixing  the 
period  of  redemption  from  judicial  sales  means 
calendar  and  not  lunar  months,  and  a  sheriff's  deed 
executed  before  the  expiration  of  the  statutory  period 
of  redemption  is  absolutely  void  and  not  merely  void- 
able.    (Gross  V.  Foivler,  21  Cal.  393.) 

§  502.  When  deed  takes  effect.  When  a  judg- 
ment is  rendered  in  an  attachment  suit,  and  becomes 
a  lien  on  real  property  the  lien  of  the  attachment  is 


§  502  SHERIFFS  AND  CONSTABLES.  294 

merged  in  the  judgment  and  the  deed  which  follows 
takes  effect  from  the  date  of  the  attachment.  The 
judgment  does  not  operate  so  as  to  release  or  oblit- 
erate the  attachment  lien.  The  property  attached  is 
still  in  contemplation  of  law  in  the  hands  of  the 
officer,  subject  to  the  judgment.  The  property  is 
sold  under  final  process  issued  on  the  judgment,  but 
the  deed  made  to  the  purchaser  at  the  sale  as  the  last 
of  the  series  of  acts  takes  effect  from  the  date  of  the 
levy  of  the  attachment  as  the  first  of  the  series  of 
acts  and  perfects  the  title  of  the  property  from  the 
day  when  it  was  taken  by  the  officer  for  the  satisfac- 
tion of  the  judgment.  In  the  case  of  Porter  v.  Pico, 
55  Cal.  174,  Mr.  Justice  McKee,  who  delivered  the 
opinion  of  the  court,  said: — - 

^'Perhaps  it  would  be  more  in  accordance  with  the 
fitness  of  things  to  deal  with  the  fact  of  the  levy  of 
the  attachment  as  of  an  incipient  execution,  by  which 
the  officer  has  taken  into  his  possession  the  subject 
of  the  levy  for  the  satisfaction  of  any  judgment  which 
might  be  recovered,  and  to  order  him  after  judgment, 
to  sell  the  specific  property  for  that  purpose.  Under 
the  other  practice  the  levy  of  the  attachment  upon 
the  principal  transit  in  rem  judicatam  becomes 
merged  in  the  judgment,  and  the  judgment  perpetu- 
ates the  lien  of  the  levy,  and  the  sheriff's  deed  per- 
fects the  title  which  passes  by  the  sale  under  the 
judgment  and  relates  to  the  date  of  the  levy.  Upon 
these  principles  it  is  not  necessary  for  the  court,  in 
order  to  enforce  priority  of  lien,  to  make  an  order  for 
the  sale  of  the  property  attached,  or  to  issue  a  vendi- 
tioni exponas.  The  execution  upon  the  judgment 
is  a  sufficient  authority  to  the  sheriff  to  sell  the  real 
property  which  he  has  in  his  possession,  and  the  deed 


295  sheriff's  deed.  §  593 

which  he  makes  relates  back  to  the  date  of  the  lien 
perpetuated  by  the  judgment."  (See,  also,  next  sec- 
tion.) 

A  sheriff's  deed  takes  effect  from  the  time  of  its 
actual  delivery,  and  the  execution  of  the  deed  by  the 
sheriff  and  information  given  by  him  to  the  grantee 
that  the  deed  is  ready  for  him  do  not  amount  to  a 
delivery.  {Jefferson  v.  Wendt,  51  Cal.  573.)  The 
statute  of  limitations  does  not  commence  running 
against  a  purchaser  of  land  at  a  sheriff's  sale  until 
the  sheriff's  deed  has  been  delivered  to  the  purchaser 
or  some  one  for  him  in  such  a  way  as  to  be  beyond 
the  legal  control  of  the  grantor. 

§  c^o^.  What  sheriff's  deed  conveys.  The  sheriff's 
deed  on  execution  sale  passes  such  title  and  interest 
as  the  judgment  debtor  had  in  the  land  at  the  time 
of  the  levy  and  such  as  he  acquired  between  the  time 
of  the  levy  and  the  sale.  {Kenyon  v.  Qiiinn,  41  Cal. 
325  ;  Frink  v.  Roe,  70  Cal.  296,  1 1  Pac.  820.)  When 
an  attachment  has  been  levied  in  the  suit  under  which 
the  sale  is  made,  however,  the  deed  of  the  sheriff 
also  relates  back  to  the  attachment  and  conveys  such 
title  as  the  judgment  debtor  had  at  that  time.  {Porter 
V.  Pico,  55  Cal.  165.)  And  in  case  of  any  other  stat- 
utory lien,  for  satisfaction  of  which  the  sale  is  made, 
the  deed  relates  back  to  the  vesting  of  such  lien. 
{Little field  v.  Nichols,  42  Cal.  372.)  When  there  are 
no  judgment  or  attachment  or  other  statutory  liens  the 
deed  relates  back  only  to  the  time  of  the  levy  of 
the  execution.  {Blood  v.  Light,  38  Cal.  649,  99  Am. 
Dec.  441.) 

The  sheriff's  deed  of  an  equitable  title  standing 
in  the  judgment  debtor  does  not  by  operation  of  law 


§§  504>  505       SHERIFFS  AND  CONSTABLES.  296 

pass  the  legal  title  which  may  thereafter  be  acquired 
by  him,  but  the  debtor  holds  the  legal  title  in  trust 
for  the  purchaser  under  the  sheriff's  sale.  {Kenyon 
V.  Quinn,  ante.    See,  also,  sec.  502,  ante.) 

§  504.  Recitals  in  sheriff *s  deed.  The  oflicer 
who  makes  a  sale  of  land  by  virtue  of  an  execution 
and  executes  to  the  purchaser  a  deed  therefor  must 
in  his  deed  make  recitals  of  the  recovery  of  the  judg- 
ment, the  names  of  the  judgment  creditor  or  cred- 
itors and  of  the  judgment  debtor  or  debtors  and  of 
the  issuing  of  an  execution  on  the  judgment  and  of 
the  levy  and  sale  thereunder.  The  recital  of  such 
facts  is  essential  to  show  the  officer's  authority  and 
the  transmission  of  the  debtor's  title  in  the  property 
to  the  purchaser.  {Donahue  v.  McNulty,  24  Cal. 
411,  85  Am.  Dec.  78.) 

'Tt  may  be  regarded  as  settled  in  California  that 
the  misrecital  of  the  execution  in  an  officer's  deed 
will  not  affect  the  validity  of  the  deed,  if  the  officer 
had  authority  to  sell."  {Wilson  v.  Madison,  55 
Cal.  5.) 

§  505.  Parol  evidence  not  admissible.  Parol 
testimony  of  the  officer  who  makes  a  sale  of  prop- 
erty under  an  execution  and  executes  a  deed  to  the 
purchaser  therefor  is  not  admissible  for  the  purpose 
of  adding  to,  contradicting  or  altering  the  terms  of 
the  deed. 

Parol  evidence  is  inadmissible  to  show  that  a  con- 
stable's sale  was  made  by  virtue  of  any  other  judg- 
ment or  execution  than  that  recited  in  the  deed;  and 
it  is  also  inadmissible  to  show  that  the  constable 
sold  the  interest  of  a  person  in  the  land  described  in 


297  sheriff's  deed.  §§  506-509 

the  deed  whose  interest  the  deed  itself  does  not  recite 
upon  its  face  to  have  been  sold.  {Donahue  v.  Mc- 
Nulty,  24  Cal.  412,  85  Am.  Dec.  78.) 

§  506.    Who  estopped  by  recitals  in  sheriff's  deed. 

The  officer  executing  a  deed  for  property  sold  under 
execution,  and  those  who  claim  under  the  deed,  are 
estopped  from  denying  the  truth  of  the  matters  re- 
cited therein,  but  the  same  are  not  evidence  as  against 
strangers,  or  those  claiming  adversely  to  the  deed. 
{Donahue  v.  McNulty,  24  Cal.  411,  85  Am. 
Dec.  78.) 

§  507.    Against  whom  officer's  deed  is  evidence. 

A  deed  of  a  constable,  made  of  land  sold  under  exe- 
cution, is  not  evidence  of  the  purchaser's  title  as 
against  any  person  except  those  whom  the  deed 
shows  upon  its  face  to  have  been  judgment  debtors, 
and  named  as  such  in  the  execution  issued  on  the 
judgment,  and  whose  interest  in  the  property  was 
sold  by  the  officer.  {Donahue  v.  McNulty,  24  Cal. 
411,  85  Am.  Dec.  78.) 

§  508.    How    meaning    of    deed    is    ascertained. 

Where  the  language  of  a  deed  executed  by  an  officer 
for  property  sold  under  execution  is  plain  and  un- 
ambiguous the  court  should  limit  its  inquiry  to  what 
the  words  of  the  deed  express  without  regard  to  any 
intention  independent  of  the  words.  {Donahue  v. 
McNulty,  24  Cal.  41 1,  85  Am.  Dec.  78.) 

§  509.    Against  whom  officer's  deed  not  evidence. 

Where  a  judgment  was  rendered  against  several  per- 
sons and  the  execution  issued  upon  it  against  all  the 


§§510-512       SHERIFFS  AND  CONSTABLES.  298 

judgment  debtors  and  the  constable  levied  upon  and 
sold  the  land  of  one  of  the  judgment  debtors,  but  in 
making  a  deed  to  the  purchaser  did  not  insert  the 
name  of  the  one  whose  land  had  been  sold  as  a  judg- 
ment debtor  or  recite  that  his  land  had  been  sold: 
Held,  that  the  deed  was  not  evidence  of  title  in  the 
purchaser  as  against  the  owner  of  the  land.  {Dona- 
hue V.  McNulty,  24  Cal.  41 1,  85  Am.  Dec.  78.  See, 
also,  sees.  506,  507,  ante.) 

§  510.     Premature  sheriff's  deed  is  void.      If   a 

sheriff's  deed  be  given  before  the  time  for  redemp- 
tion has  expired  it  is  void.  [Gross  v.  Fourier,  21  Cal. 
393.    See,  also,  sec.  ^01,  ante.) 

§511.    When  mandamus  to  sheriff  will  not  lie. 

A  mandamus  will  not  lie  to  compel  a  sheriff  to  make 
a  deed  of  land  to  a  purchaser  at  execution  sale  who 
refuses  to  pay  the  purchase  money  on  the  ground 
that  he  is  entitled  to  it  as  the  oldest  judgment  and 
execution  creditor,  especially  when  there  is  an  un- 
settled contest  as  to  the  priority  of  his  lien.  {JVil- 
liatns  V.  Smith,  6  Cal.  98.) 

§  512.  Deed  by  deputy.  A  sheriff's  deputy  may 
execute  a  deed  for  property  sold  under  execution,  but 
he  must  execute  it  in  the  name  of  the  sheriff.  {Lewis 
V.   Thompson,  3  Cal.  267.) 


CHAPTER  XIX. 

sheriff's  sales. 

§  513.  Sale  of  perishable  property. 

§  514.  Clerical  errors  in  notice  of  sale. 

§  515.  Defective  notice  of  sale. 

§  516.  Ofificial  advertising. 

§  517.  Power  under  foreclosure  to  sell  land  in  another  county. 

§  518.  Harmless  irregularity  in  decree. 

§  519-  Order  of  sale  unnecessary. 

§  520.  When  sale  of  franchise  is  to  be  made. 

§  521.  Franchise  may  be  sold  under  execution. 

§  522.  Good-will  of  business  is  property. 

§  523.  Effect  of  return  without  sale. 

§  524.  Resale. 

§  525.  Sales  under  foreclosure. 

§  526.  Levy  not  necessary. 

§  527.  Sheriff's  authority  to  make  sale. 

§  528.  Prompt  return  after  sale. 

§  529.  Time  for  return  unlimited. 

§  530.  Second  order  of  sale. 

§  531.  Order  of  sale^ — Designation  by  judgment  debtor. 

§  532.  Sale  of  both  real  and  personal  property. 

§  533-  Appeal — Stay  of  proceedings. 

§  534.  Title  conveyed  by  foreclosure  sale. 

§  535.  Removal  of  improvements. 

§  536.  Mortgage  of  partner's  interest. 

§  537.  Redemption. 

§  538.  Rights  of  mortgagor. 

§  539-  Sale  by  commissioner. 

§  540.  How  sale  should  be  conducted. 

§  541.  Penalty  for  selling  without  notice. 

§  542.  Sale  after  return  day — When  valid. 

§  543.  Postponement  of  sale. 

§  544.  Resale  where  bidder  refuses  to  pay. 

§  545.  The  title  the  purchaser  secures. 


SHERIFFS  AND  CONSTABLES.  3<^« 

§  546.  Judgment  is  payable  in  money  only. 

§  547-  Application  of  proceeds— Conflicting  attachments. 

§  548.  Conflicting  process  from  different  courts. 

§  549.  Payment  into  court — Disobedience  of  void  order. 

§  550.  Senior  and  junior  writs. 

§  551.  Payment  of  proceeds  of  the  sale. 

§  552.  Surplus  to  be  returned  to  the  defendant. 

§  553-  Death  of  the  defendant  after  levy. 

§  554.  Computation  of  interest  on  judgment. 

§  555.  Sales — When  valid  and  v^hen  void. 

§  556.  Sale  of  choses  in  action. 

§  557.  Sale  of  toll-road. 

§  558.  Proceeds  of  mortgaged  property. 

§  559.  Execution  sales  of  vessels. 

§  560.  Preferred  claims  against  vessels. 

§  561.  Purchaser  entitled  to  certificate  of  sale. 

§  562.  Liability  for  wrongful  sale. 

§  563.  Notice  of  sale  under  execution. 

§  564.  When  and  how  real  property  must  be  sold. 

§  565.  Sale  without  notice. 

§  566.  Purchaser  not  an  aggrieved  party. 

§  567.  Recovery  for  sale  without  notice. 

§  568.  Sales  under  two  or  more  executions. 

§  569.  Setting  aside  sheriff's  sale. 

§  570.  Irregularities  of  sale — Remedy. 

§  571.  Justice's  court  sale — Transcript. 

§  572.  Sale  to  be  made  in  parcels. 

§  573.  Sale  in  mass  by  agreement. 

§  574.  Debtor  may  direct  order. 

§  575.  Setting  aside  sale — Showing  required. 

§  576.  Unreasonable  delay  in  application. 

§  577.     Sheriff's  sales  not  credit  sales. 

§  578.     Sale  of  leasehold  interest— When  absolute. 

§  579.     Certificate  of  sale. 

§  580.  Title  under  sheriff's  certificate  of  sale. 

§  581.     Amendment  of  certificate. 

§  582.     Redemption. 

§  583.     Resale  on  refusal  of  purchaser  to  pay. 

§  584.     Recovery  from  bidder. 

§  585.     Sale  passes  interest  acquired  after  levy. 


30I 


sheriff's  sales.  §  5^3 


§  586.  Title  of  purchaser  is  not  dependent  on  sheriff's  return. 

§  587.  Title  when  attachment  irregular— Intervening  pur- 
chaser. 

§  588.  Conveyance  by  debtor  after  attachment. 

§  589.  Purchaser's  title  dependent  upon  valid  unsatisfied 
judgment. 

§  590.  Rights  of  innocent  purchaser. 

§  591.  Relief  of  purchaser — Caveat  emptor. 

§  592.  Relief  in  discretion  of  the  court. 

§  593-  When  purchaser  cannot  recover. 

§  594.  Where  misrepresentation  used. 

§  595-  Sheriff's  deed. 

§  596.  Deed  by  successor. 

§  597.  Deed  relates  back  to  attachment. 

§  598.  Cloud  on  title. 

§  599.  Satisfaction  of  mortgage  by  sheriff  or  commissioner. 

§  600.  Service  of  final  process  in  new  counties. 

§  513.  Sale  of  perishable  property.  In  the  case 
of  Witherspoon  v.  Cross  et  al.,  135  Cal.  96,  67 
Pac.  18,  the  sheriff  attached  a  lot  of  groceries,  lum- 
ber, etc.,  and  sold  a  few  articles  such  as  beef  as  perish- 
able and  held  the  remainder  about  eleven  months. 
The  defendant  had  judgment,  the  attachment  was 
dismissed,  and  the  sherifif  was  sued  for  depreciation 
of  value  of  the  property  while  in  his  custody.  The 
court  held  the  sheriff  liable  and  the  case  was  ap- 
pealed.    The  following  is  from  the  decision: — 

"It  is  contended  by  appellants,  however,  that  the 
stock  of  groceries  and  provisions,  consisting  princi- 
pally of  canned  goods,  collfee,  flour,  and  farinaceous 
goods,  should  have  been  sold  by  the  sheriff  as  perish- 
able goods.  Section  547  of  the  Code  of  Civil  Pro- 
cedure provides:  Tf  any  of  the  property  attached  be 
perishable,  the  sheriff  must  sell  the  same  in  the  man- 
ner in  which  such  property  is  sold  on  execution. 


§513  SHERIFFS  AND  CONSTABLES.  302 

.  .  . '  But  the  code  does  not  define  what  is  'perish- 
able property.'  Black's  Law  Dictionary  defines 
'perishable  goods'  as  'goods  which  decay  and  lose 
their  value  if  not  speedily  put  to  their  intended  use.' 
The  same  author  defines  'perishable'  thus:  'Perish- 
able' ordinarily  means  subject  to  speedy  and  natural 
decay.  But  where  the  time  contemplated  is  neces- 
sarily long  the  term  may  embrace  property  liable 
merely  to  material  depreciation  in  value  from  other 
causes  than  such  decay.'  But  here  the  time  was  not 
'necessarily  long.'  The  sheriff  sold  a  few  articles, 
such  as  fresh  beef,  as  perishable,  but  he  could  not 
anticipate  that  the  attached  property  would  remain 
in  his  hands  for  nearly  a  year.  Had  he  immediately 
sold  the  whole  stock  as  perishable,  and  the  next  day 
or  the  next  week  the  action  had  been  dismissed,  or 
the  attachment  otherwise  discharged,  could  it  be 
doubted  that  the  sherifif  would  be  liable  for  the  full 
value  of  the  goods,  and  not  merely  for  the  proceeds 
of  the  sale?  In  Webster  v.  Peck,  31  Conn.  498,  the 
court  adopted  Webster's  definition,  'subject  to  speedy 
decay,'  and  added:  'The  great  delay,  however,  be- 
tween the  attachment  of  property  on  mesne  process 
and  obtaining  judgment  which  attended  litigation 
previous  to  the  reorganization  of  our  judicial  system, 
and  the  obvious  equity  of  the  law,  led  to  a  liberal 
construction  of  the  statute  to  advance  the  remedy, 
and  orders  for  the  sale  of  property  not  in  its  nature 
perishable,  but  which  would  materially  depreciate 
in  value  for  other  causes,  have  been  quite  common.' 
In  this  state,  however,  we  have  more  than  'the  equity 
of  the  law'  above  spoken  of.  Section  548  of  the  Code 
of  Civil  Procedure  expressly  provides  that  when 
property  has  been  taken  under  a  writ  of  attachment 


303 


SHERIFF'S  SALES.  §§514)5^5 


and  it  is  made  to  appear  to  the  court  or  a  judge 
thereof  that  the  interest  of  the  parties  will  be  sub- 
served by  a  sale  thereof,  the  court  or  judge  may  order 
it  to  be  sold.  The  order  cannot  be  made  except  upon 
notice  to  the  adverse  party.  It  is  clear,  therefore, 
that  the  sherifif  has  no  authority  to  sell  property  that 
is  not  perishable  within  the  meaning  of  section  547 
of  the  Code  of  Civil  Procedure  without  an  order  of 
the  court  or  judge  made  after  notice." 

A  sheriff  has  no  authority  to  sell  property  that  is 
not  perishable  within  the  meaning  of  section  547  of 
the  Code  of  Civil  Procedure,  held  under  an  attach- 
ment, without  an  order  of  court.  {Witherspoon  v. 
Cross,  22  Cal.  846.) 

§  514.  Clerical  errors  in  notice  of  sale.  A  sale 
will  not  be  vacated  merely  because  the  notice  of  sale 
does  not  correctly  state  the  date  the  decree  was  ren- 
dered, where  the  notice  otherwise  with  sufficient  ac- 
curacy described  the  decree  under  which  the  sale 
was  made.  (Mead  v.  Hoover,  63  Neb.  419,  88 
N.  W.  655.) 

A  judicial  sale  will  not  be  set  aside  merely  because 
the  notice  of  sale  does  not  state  the  amount  due  on 
the  decree.  (Dederick  v.  Gillespie,  63  iSeb.  422,  88 
A^  W,  659.) 

Nor  will  such  sale  be  set  aside  merely  because  the 
officer  did  not  return  the  order  of  sale  within  sixty 
days  from  the  date  thereof.  {Cross  v.  Leidich,  63 
Neb.  420,  88  N.  W.  667.) 

§  515.  Defective  notice  of  sale.  Where  the  stat- 
ute does  not  require  the  sheriff  to  specify  in  the  notice 
of  sale  the  names  of  either  the  plaintiff  or  defendant 


§5l6  SHERIFFS  AND  CONSTABLES.  304 

in  judgment  or  the  name  of  the  judgment  debtor 
whose  property  is  being  sold,  a  sale  will  not  be 
vitiated  by  the  failure  of  the  notice  to  set  out  the 
names  of  the  parties.  (20  Ency.  Plead.  &  Prac,  p. 
197.)  It  is  of  no  importance  to  the  public  whether 
the  execution  debtor  is  named  or  not.  In  Harrison  v. 
Cachelin,  35  Mo.  79,  the  sherifif,  having  an  execution 
against  A,  B,  and  C,  in  his  advertisement  stated  that 
by  virtue  of  an  execution  against  A  "and  others"  he 
had  levied  upon,  etc.,  describing  the  time  and  place 
of  sale  and  the  property  to  be  sold.  It  was  held  that 
the  advertisement  complied  with  the  statute  and  the 
title  passed  by  the  sheriff's  sale  and  deed.  In  McLain 
Lumber  and  Improvement  Co.  v.  Kelly,  1 1  Okla.  26, 
66  Pac.  282,  the  sherifif  omitted  a  part  of  the  defend- 
ant's name  from  his  advertisement,  and  the  court  held 
that  the  omission  did  not  vitiate  the  sale. 

§  516.  Official  advertising.  The  legislature  of 
California  (1903)  settled  the  long-mooted  question 
as  to  what  constitutes  legal  publication,  or  official 
advertising,  by  adding  the  foUovv^ing  sections  to  the 
Political  Code: — 

"4458.  Whenever  any  publication,  or  notice  by 
publication,  or  official  advertising  is  required  to  be 
given  or  made  by  the  provisions  of  this  code,  the  Civil 
Code,  the  Code  of  Civil  Procedure,  the  Penal  Code, 
or  by  any  law  of  the  state,  by  any  officer  now  exist- 
ing, or  any  hereafter  to  be  created,  in  this  state,  or  any 
political  subdivision  thereof,  or  by  any  officer  of  a 
county,  city,  city  and  county,  or  town,  such  publica- 
tion or  notice  by  publication,  or  advertising,  shall  be 
given  or  made  only  in  a  newspaper  of  general  circu- 
lation, where  such  a  newspaper  is  published  within 
the  jurisdiction  of  said  official. 


305 


SHERIFF'S  SALES.  §  5^6 


"4460.  A  newspaper  of  general  circulation  is  a 
newspaper  published  for  the  dissemination  of  local 
or  telegraphic  news  and  intelligence  of  a  general 
character,  having  a  bona  fide  subscription  list  of  pay- 
ing subscribers,  and  which  shall  have  been  estab- 
lished, printed,  and  published  in  the  state,  county, 
city,  city  and  county,  or  town,  where  such  publica- 
tion, notice  of  publication,  or  official  advertising,  is 
given  or  made,  for  at  least  one  year.  A  newspaper 
devoted  to  the  interests,  or  published  for  the  enter- 
tainment of  a  particular  class,  profession,  trade,  call- 
ing, race,  or  denomination,  or  any  number  thereof, 
is  not  a  newspaper  of  general  circulation." 

§  517.  Power,  under  foreclosure,  to  sell  land  in 
another  county.  The  sheriff,  in  making  sale  on 
foreclosure,  is  the  mere  executive  officer  of  the  court. 
The  manner  of  sale,  as  to  its  being  public,  and  the 
notice  thereof  to  be  given,  is  fixed  by  statute;  but 
what  he  shall  sell,  regardless  of  the  situs  thereof,  is 
determined  by  the  decree  under  which  the  sale  is 
made.  Unless  otherwise  provided  in  the  decree,  his 
power  to  sell  real  property  situated  outside  of  his 
county  is  coextensive  with  the  jurisdiction  of  the 
court  by  decree  to  order  such  sale.  The  sale  itself 
is  a  part  of  the  proceeding  of  foreclosure,  and  the 
foreclosure  is  not  complete  until  the  sale  is  made  and 
the  equity  of  redemption  is  extinguished.  (Goldtree 
v.  McAllister,  86  Cal.  105,  24  Pac.  801.) 

There  can  be  but  one  action  for  the  foreclosure  of 
a  mortgage.  (Code  Civ.  Proc,  sec.  726.)  And 
though  the  mortgage  may  cover  several  separate 
tracts  or  parcels  of  land  it  cannot  be  foreclosed  piece- 
meal.     [Mascarel  v.  Raffans,  51    Cal.   242.)      The 


§517  SHERIFFS  AND  CONSTABLES.  306 

mortgage  being  a  lien  upon  real  property,  the  action 
for  its  enforcement  must  be  brought  in  the  county  in 
which  the  real  property  afifected  or  some  part  thereof 
is  situated.     {Const.,  art.  6,  sec.  5.)     Where  the  real 
property  is  situated  partly  in  one  county  and  partly 
in  another  the  plaintiff  may  select  either  of  the  coun- 
ties in  which  to  bring  his  action  of  foreclosure,  and 
the  county  so  selected  is  the  proper  county  for  the 
trial  of  such  action.      (Code  Civ.  Proc,  sec.  392.) 
Every  judicial,  ministerial,  and  executive  official  act 
necessary  to  effect  the  foreclosure  may  be  performed 
in  any  county  in  which  any  part  of  the  mortgaged 
property  is  situated.     {Goldtree  v.  McAlister,  supra, 
p.  lot.)     Under  this  decision  there  can  be  no  doubt 
that  where  the  mortgaged  property  consists  of  one 
body,  though  situated  in  several  counties,  it  may  all 
be  sold  by  the  sheriff  of  that  one  of  those  counties  in 
which  the  decree  is  entered.     The  language  of  the 
decision  would  imply  that  such  a  sale  would  be  valid, 
though   the  land  consisted  of  several   distinct  and 
separate  parcels  situated  in  different  counties,  unless 
the  decree  itself  directed  otherwise.     But  in  prac- 
tice, where  the  land  in  the  different  counties  is  com- 
posed of  separate  and  distinct  tracts,  the  courts  fre- 
quently (but  perhaps  not  universally),  in  and  by  the 
decree  direct  that  the  several  separate  parcels  be 
sold  by  the  sheriffs  of  the  different  counties  in  which 
they  are  respectively  situate,  and  separate  orders  of 
sale  are  issued  accordingly,  as  separate  executions 
may  issue  to  sheriffs  of  different  counties  upon  the 
same  judgment.     It  should  be  noted,  however,  that 
in  all  cases  the  sheriff  making  the  sale  should  give 
the  notice  required  by  subdivision  3  of  section  692 
of  the  Code  of  Civil   Procedure,  viz.,  by  posting 


307  sheriff's  SALES.  §517 

written  notice  of  the  time  and  place  of  sale,  particu- 
larly describing  the  property,  for  twenty  days,  in 
three  public  places  of  the  township  or  city  where  the 
property  is  situated,  and  also  where  the  property  is  to 
be  sold,  and  publishing  a  copy  thereof  once  a  week 
for  the  same  period  in  some  newspaper  published  in 
the  county,  if  there  be  one. 

The  foreclosure  of  a  mortgage  embraces  the  sale 
of  the  property,  and  the  execution  of  the  sheriff's 
deed,  as  well  as  the  decree  of  the  court  ordering  the 
sale.  A  mortgage  cannot  be  said  to  be  foreclosed, 
even  in  the  sense  of  our  code,  until  the  mortgagor's 
right  of  redemption  is  cut  off.  Anderson's  Law  Dic- 
tionary defines  "foreclosure"  as  follows:  "i.  Specif- 
ically, the  extinguishment  of  a  mortgagor's  equity  of 
redemption  beyond  possibility  of  recall.  A  mortgage 
is  foreclosed  in  the  sense  that  no  one  has  the  right 
to  redeem  it  or  to  call  the  mortgagee  to  account 
under  it.  In  no  sense  can  the  term  be  applied  to  a 
mortgage  until  sale  of  the  property  has  been 
effected."  (Referring  to  3  Bla.  Com.  118;  Puffery. 
Clark,  7  Allen,  85;  and  Duncan  v.  Cobb,  32  Minn. 
464,  21  N.  IF.  714.) 

In  Goldtree  v.  McAlister,  above  cited,  it  is  said: 
"In  providing  that  an  action  for  the  foreclosure  of 
a  mortgage  may  be  commenced  and  tried  in  any 
county  in  which  any  part  of  the  mortgaged  property 
is  situated,  it  must  have  been  the  intention  of  the 
legislature  that  the  mortgage  should  be  foreclosed 
in  such  county;  that  is  to  say,  that  every  judicial, 
ministerial,  and  executive  official  act  necessary  to 
efifect  a  foreclosure  might  be  performed  in  any  county 
in  which  any  part  of  the  property  was  situated.  A 
piece  of  mortgaged  land  may  be  partly  situated  in 


§§518,519       SHERIFFS  AND  CONSTABLES.  308 

several  different  counties,  as  where  three  or  four 
counties  corner  upon  it,  and  also  where  it  is  traversed 
by  a  meandering  stream  which  marks  the  boundary 
line  between  two  counties.  In  such  case  it  would  be 
very  inconvenient  and  unnecessarily  expensive  to  re- 
quire each  part  of  the  land  to  be  separately  sold  and 
conveyed  by  the  sheriff  of  the  county  in  which  it  is 
situated.  Beside,  it  would  generally  turn  out  that 
the  sum  of  the  value  of  all  the  parts  thus  sold  would 
not  equal  the  value  of  the  undivided  whole.  These 
considerations  strengthen  the  construction  permitting 
the  mortgage  to  be  completely  foreclosed  in  any  one 
of  the  counties  in  which  any  part  of  the  mortgaged 
property  is  situated." 

§  518.  Harmless  irregularity  in  decree.  Where 
a  decree  of  foreclosure  of  a  mortgage  directed  the 
sale  to  be  made  by  a  commissioner  who  was  named 
therein,  and  the  decree  was  copied  in  the  body  of  the 
order  of  sale  and  formed  part  of  it,  the  fact  that  the 
order  of  sale  was  directed  to  the  sheriff,  while  the 
commissioner  executed  it,  is  a  harmless  irregularity 
and  does  not  avoid  the  sale.  (Taylor  v.  Ellenberger, 
128  Cal.  411,  60  Pac.  1034,  134  ^^^-  3 1)  6^  P^^-  4- 
See  McDermot  v.   Barton,    106   Cal.    194,   39  Pac. 

538.) 

§  519.  Order  of  sale  unnecessary.  The  authority 
of  the  sheriff  to  sell  mortgaged  real  estate  under  fore- 
closure proceedings  is  derived  from  the  decree  of 
foreclosure,  and  not  from  the  order  of  sale  issued  by 
the  clerk  of  the  court.  Passumpsic  Savings  Bank 
V.  Maulick,  60  Neb.  469,  83  Am.  St.  Rep.  539,  83 
N.  W.  672,  was  an  appeal  from  an  order  of  the  dis- 


309  sheriff's  sales.  §  520 

trict  court  confirming  a  sale  of  real  estate  by  the 
sheriff  under  foreclosure.  The  seal  of  the  court  was 
omitted  from  the  order  of  sale,  and  it  was  insisted 
that  it  was  therefore  void  and  did  not  confer  upon 
the  sheriff  power  to  advertise  and  sell  the  mortgaged 
property.  "Conceding  this  proposition  to  be  sound," 
said  the  court,  "it  does  not  follow  that  the  order  of 
confirmation  should  be  set  aside.  The  sheriff's  au- 
thority was  not  derived  from  the  order  of  sale,  but 
from  the  decree.  If  the  sale  was  made  in  pursuance 
of  the  decree  it  was  the  duty  of  the  court  to  ratify 
it  regardless  of  irregularities  in  the  process  issued 
by  the  clerk.  The  issuance  of  the  order  of  sale  was 
unnecessary  and  the  infirmity  in  question  was  without 
prejudice  to  the  rights  of  the  appellant.  (Rector  v. 
Rotton,  3  Neb.  171  ;  Fried  v.  Stone,  14  Neb.  398,  15 
N.  W .  698 ;  Johnson  v.  Colby,  52  Neb.  327,  72  N.  W. 
313;  Amoskeag  Savings  Bank  v.  Rabbins,  53  Neb. 
776,  74  A^.  W.  261  ;  Jarrett  v.  Hoover,  54  Neb.  65, 
74  A^.   W.  729;  Bristol  Savings  Bank  v.  Field,  57 

A^^^.  670,  72  ^i^-  Si-  R^P-  539?  78  ^^'  f^-  254.  In 
the  first  point  of  the  syllabus  to  Johnson  v.  Colby,  52 
Neb.  327,  72  N.  W.  313,  it  is  said:  "A  decree  of 
foreclosure  is  sufficient  authority  in  itself  for  its  exe- 
cution. No  order  of  sale  need  issue,  and  if  one  be 
issued,  a  sale  made  thereunder  will  not  be  set  aside 
for  formal  defects  in  the  order,  or  for  failure  of  the 
t)fficer  to  follow  entirely  the  command  of  the  order, 
provided  he  follow  the  law  and  the  decree." 

§  520.    When   sale  of  franchise   is   to  be   made. 

The  sale  of  any  franchise  under  execution  must  be 
made  in  the  county  in  which  the  corporation  has  its 
principal  place  of  business  or  in  which  the  property 


§§521-524       SHERIFFS  AND  CONSTABLES.  310 

or  some  portion  thereof  upon  which  the  taxes  are 
paid  is  situated.     {California.     Civ.  Code,  sec.  393.) 

§  521.    Franchise  may  be  sold  under  execution. 

For  the  satisfaction  of  any  judgment  against  any  per- 
son, company,  or  corporation  authorized  to  receive 
tolls,  the  franchise  and  all  rights  and  privileges 
thereof  may  be  levied  upon  and  sold  under  execu- 
tion in  the  same  manner  and  with  the  same  effect  as 
any  other   property.     (California.     Civ.    Code,  sec. 

388.) 

A  franchise  is  personal  property  not  capable  of 
manual  delivery.  {See  Gregory  v.  Blanchard,  98 
Cal.  311,  33  Pac.  199.)  Subdivision  5  of  section  542 
of  the  Code  of  Civil  Procedure  provides  for  attach- 
ment of  personal  property  not  capable  of  manual 
delivery  by  garnishment. 

§  522.  Good- will  of  business  is  property.  Sec- 
tion 993  of  the  Civil  Code  declares  that  the  good- 
will of  a  business  is  property,  transferable  like  any 
other. 

§  523.  Effect  of  return  without  sale.  The  re- 
turn by  the  commissioner  without  sale  cannot  warrant 
the  docketing  of  a  deficiency  judgment;  and  a  judg- 
ment so  docketed  upon  which  execution  is  issued  is 
properly  vacated  by  the  court  and  the  execution 
quashed.  {Hubbard  v.  University  Bank  of  Los  An- 
geles, 125  Cal.  684,  58  Pac.  297.) 

§  524.  Resale.  If  a  purchaser  refuse  to  pay  the 
amount  bid  by  him  for  property  struck  ofif  to  him  at 
a  sale  under  execution  the  officer  may  again  sell  the 


311  sheriff's  SALES.  §524 

property  at  any  time  to  the  highest  bidder,  and  if 
any  loss  be  occasioned  thereby  the  officer  may  re- 
cover the  amount  of  such  loss  with  costs  from  the 
bidder  so  refusing  in  any  court  of  competent  juris- 
diction.     {California.    Code  Civ.  Proc,  sec.  695.) 

In  Nebraska  it  appears  to  be  the  duty  of  the  sheriff 
in  the  event  of  the  non-payment  of  the  bid  "to  at  once 
resell  the  property."  He  cannot  wait  until  the  sale 
is  closed  and  the  bidders  have  departed  before  again 
offering  the  property  for  sale.  In  those  states  whose 
statutes  provide  that  execution  sales  shall  take  place 
between  specified  hours  of  the  day,  if  a  bidder  re- 
fuses or  fails  after  demand  to  make  payment,  a  resale 
may  be  made  on  the  same  day  and  within  those  hours 
and  without  any  additional  notice.  The  sheriff  may, 
no  doubt,  immediately  upon  the  acceptance  of  the 
bid,  demand  payment,  and  in  case  it  is  not  made,  then 
and  there  resell  the  property.  (2  Freeman  on  Execu- 
tions, 2^  ^^•'  ^^^-  3^3S') 

In  Weatherby  v.  Slape,  58  N.  J.  Eq.  550,  78  Am. 
St.  Rep.  627,  43  Atl.  898,  the  court  decides  that  "if 
an  officer  strikes  ofif  real  estate  to  the  highest  bidder 
at  the  time  and  place  duly  advertised  for  its  sale 
under  execution,  and,  after  the  persons  there  assem- 
bled have  dispersed  and  gone,  the  officer  returns  to 
the  place  of  sale  because  of  the  purchaser's  failure  to 
comply  with  his  bid  and  the  conditions  of  sale,  and, 
shortly  before  the  expiration  of  the  advertised  hour 
of  sale,  publicly  announces  that  the  sale  is  adjourned 
for  two  weeks,  such  adjournment  is  not  legal,  and  the 
sale  held  under  such  notice  is  void.  To  render  such 
adjourned  sale  legal,  notice  thereof  must  be  given  in 
the  presence  and  hearing  of  the  persons  assembled 
at  the  time  and  place  first  fixed  for  the  sale.     The 


§524  SHERIFFS  AND  CONSTABLES.  312 

length  of  an  adjournment  rests  largely  in  the  dis- 
cretion of  the  officer,  and  unless  it  be  for  more  than 
one  week  no  notice  of  the  adjournment  beyond  that 
given  by  the  act  of  adjourning  need  be  published; 
and  even  for  longer  adjournments  subsequent  publi- 
cation in  the  newspapers  of  a  statement  of  the  parties 
to  the  cause  and  of  the  time  and  place  of  the  adjourn- 
ment, without  any  description  of  the  property,  is  all 
that  the  statute  requires." 

Upon  failure  of  a  purchaser  to  comply  with  his 
bid  the  sheriff  may  resell  on  the  same  day  within  legal 
hours  without  readvertisement.  (Humphrey  v.  Mc- 
Gili  59  Ga.  649.) 

Where  the  purchaser  of  land  sold  under  execution 
fails  to  pay  the  amount  of  his  bid  to  the  sherifif  it 
is  the  sheriff's  duty  to  readvertise  the  property  for 
sale  and  sell  the  same.     {Herdman  v.  Cooper,  39  ///. 

^PP'  330.) 

A  sheriff  sold  certain  real  estate  on  execution  to 
B,  who  failed  to  pay  the  purchase  money.  A  few 
days  afterwards,  without  having  adjourned  the  sale 
and  without  advertising  it  again,  the  sherifif  re- 
exposed  the  property  to  sale  and  sold  it  to  C,  who  had 
notice  of  the  facts.  Held,  that  the  sale  to  C  was  void. 
{Givan  V.  Crawford,  5  Blackf.  (Ind.)  260.) 

Where,  after  making  the  highest  bid  at  an  execu- 
tion sale,  the  bidder  retracts  and  refuses  to  pay  the 
money,  it  is  the  duty  of  the  sheriff  to  again  offer  the 
property  for  sale.  {Downing  v.  Brown,  3  Ky. 
(Hardin)    181.) 

If  a  bidder  fail  to  comply  with  his  bid  the  sheriff 
need  not  wait  as  in  case  of  no  adjudication,  but  may 
sell  again  immediately.  (Defau  v.  Massicot,  3  Mart. 
La.  (O.S.)  289.) 


313 


SHERIFF'S  SALES.  §§  525-527 


§  525.  Sales  under  foreclosure.  The  course  of 
procedure  in  making  sales  of  property  under  fore- 
closure is  the  same  as  that  provided  for  sales  under 
writs  of  execution  issued  against  real  property  of  the 
judgment  debtor,  the  notice  of  sale  being  published 
and  posted  and  the  sale  conducted  in  all  respects  as 
provided  in  the  statute,  except  so  far  as  may  be  pro- 
vided in  the  decree  and  order  of  sale.  {Heyman  v. 
Babcock,  30  Cal.  367.) 

§  526.  Levy  not  necessary.  It  is  not  necessary 
that  a  sheriff  should  go  upon  the  land  to  make  a 
formal  levy  under  a  decree  of  foreclosure  and  order 
of  sale  of  real  property.  The  object  of  a  levy  is  to 
create  a  lien  upon  the  land — to  indicate  by  some  act 
of  the  officer  the  particular  property  which  he  intends 
to  sell.  When,  however,  the  judgment  itself  desig- 
nates the  property  which  is  to  be  sold,  as  in  case  of 
foreclosure,  there  is  no  occasion  for  a  levy.  (South- 
ern Cal.  Lumber  Co.  v.  Ocean  Beach  Hotel  Co.,  94 
Cal.  217,  28  Am.  St.  Rep.  115,  29  Pac.  627.) 

§  527.  Sheriff's  authority  to  make  sale.  Under 
the  chancery  system  a  certified  copy  of  the  decree  of 
foreclosure  was  furnished  to  the  officer  as  his  au- 
thority for  making  the  sale,  and  he  acted  under  the 
direct  mandate  of  the  court;  and  such  is  now  the 
proper  practice  where  no  statutory  provision  is  made 
on  the  subject.  In  California  "when  the  judgment 
requires  the  sale  of  property,  the  same  may  be  en- 
forced by  a  writ  reciting  such  judgment,  or  the  ma- 
terial parts  thereof,  and  directing  the  proper  officer  to 
execute  the  judgment  by  making  the  sale  and  apply- 
ing the  proceeds  in  conformity  therewith."     (Code 


§527  SHERIFFS  AND  CONSTABLES.  314 

Civ.  Proc,  sec.  684.)  ''This  'writ'  is  neither  styled 
an  execution  nor  is  it  such  in  its  nature,"  no  levy 
being  necessary  in  order  to  designate  the  property 
to  be  sold;  neither  is  it  subject  to  the  statutory  pro- 
visions as  to  the  time  of  return  of  executions.  (South- 
ern Cal.  Lumber  Co.  v.  Ocean  Beach  Hotel  Co.,  94 
Cal.  217,  28  Am.  St.  Rep.  115,  29  Pac.  627.) 

The  prevailing  practice  in  California  under  the 
section  quoted  has  been  for  the  clerk  to  issue  a  writ, 
commonly  known  as  the  "order  of  sale,"  similar  in 
form  to  an  execution,  referring  briefly  to  the  decree, 
and  accompanied  by  a  certified  copy  thereof,  and 
commanding  the  sherifif  to  sell  the  property  described 
in  the  decree,  according  to  its  terms  and  requirements. 
Neither  the  description  of  the  property  nor  the 
amount  of  the  judgment  appears  in  such  writ. 

Since  the  rendition  of  the  decision  last  cited  (94 
Cal.  217,  28  Am.  St.  Rep.  115,  29  Pac.  627),  some 
doubt  has  prevailed  as  to  the  regularity  of  the  prac- 
tice as  above  stated,  and  some  attorneys  have  in- 
sisted that  the  writ  or  "order  of  sale"  issued  by  the 
clerk  shall  itself  contain  all  the  material  parts  of 
the  decree,  no  copy  of  the  latter  being  sent  with  it 
to  the  sheriff.  In  that  case,  however,  the  court  say 
that  in  the  code  provision  quoted  there  is  preserved 
the  distinction  between  the  mode  of  executing  a  com- 
mon-law judgment,  to  wit,  by  writ  of  execution,  and 
a  decree  in  equity;  that  the  officer  in  making  the  sale 
is  only  executing  the  directions  of  the  court  just  as 
under  the  chancery  system  the  officer  acted  under  the 
direct  mandate  of  the  court,  his  only  authority  being 
a  certified  copy  of  the  decree.  It  is  also  worthy  of 
notice  that  the  only  point  decided  by  the  court  in 
that  case  was  that  the  sale  should  not  be  set  aside  on 


315  sheriff's  sales.  §  527 

the  sole  ground  that  it  was  made  after  the  return  day 
named  in  the  writ. 

Further,  in  deciding  the  case  of  Tregear  v.  Eti- 
wanda  Water  Co.,  76  Cal.  537,  9  Am.  St.  Rep.  245, 
18  Pac.  658  (1888),  the  same  court  had  said:  "The 
practice  of  the  courts  in  this  state  in  directing  the 
sale  of  encumbered  property  under  foreclosure  pro- 
ceedings has  not  been  uniform.  .  .  .  Under  section 
684  of  the  Code  of  Civil  Procedure,  a  writ  reciting 
the  judgment,  or  the  material  part  thereof,  and  direct- 
ing the  officer  to  execute  the  judgment,  by  making  the 
sale,  etc.,  is  the  proper  course.  By  analogy  to  the 
former  equity  practice,  this  writ  is  usually  termed 
an  order  of  sale.  Plaintiff  so  calls  it  in  his  complaint, 
and,  as  we  think,  properly." 

The  case  of  Heyman  v.  Babcock,  30  Cal.  367 
(1866),  involved  a  foreclosure  sale  in  1856,  when 
the  statute  provided  that  where  the  judgment  re- 
quires the  performance  of  any  act  other  than  the 
payment  of  money,  a  certified  copy  of  the  judgment 
may  be  served  upon  the  officer,  and  his  obedience 
thereto  enforced.  {Practice  Act,  sec.  213.)  In  that 
case  the  court  say  that  the  general  rule  that  process 
is  the  proper  authority  of  the  sheriff  applies  to  fore- 
closure cases ;  that  when  no  express  provision  is  made 
either  by  law  or  in  the  decree  prescribing  the  mode 
of  making  sale,  "the  sheriff  acts  under  and  by  virtue 
of  an  order  of  sale  issued  upon  the  decree";  that  this 
practice  "has  been  too  long  adopted  and  too  uni- 
formly acquiesced  in  to  be  now  changed  by  the  court 
on  the  ground  that  it  was  not  fully  authorized  by 
that  act." 

It  would  seem,  therefore,  that,  considering  these 
cases,  either  with  reference  only  to  the  points  actu- 


§§528-530       SHERIFFS  AND  CONSTABLES.  316 

ally  decided,  or  giving  full  effect  to  the  obiter  dicta, 
they  are  not  only  not  in  conflict  with  the  prevailing 
practice  as  hereinbefore  outlined,  but  would  appear 
to  sustain  it.  In  whichever  form  the  writ  or  decree 
comes  to  the  hands  of  the  officer,  however,  he  should 
execute  its  mandates  if  it  comes  under  seal  of  the 
court  and  properly  attested. 

§  528.  Prompt  return  after  sale.  The  sheriff 
should  make  his  return  as  soon  as  the  sale,  delivery, 
and  filing  of  the  certificate  of  sale  are  accomplished, 
to  enable  the  plaintiff  to  have  docketed  any  deficiency 
that  may  exist  against  the  judgment  debtor.  The 
plaintiff  in  most  cases  is  entitled  to  an  execution  for 
the  deficiency,  and  if  the  judgment  debtor  has  other 
property  that  may  be  levied  upon,  the  plaintiff  may 
expect  such  promptness  on  the  part  of  the  ofiicer  as 
will  enable  him  to  secure  the  remainder  of  his  judg- 
ment, if  it  can  be  made.  Any  undue  delay  in  making 
the  return  may  entail  loss  upon  the  plaintiff',  for 
which  the  sheriff  would  be  responsible. 

§  529.  Time  for  return  unlimited.  When  the 
statute  provides  that  a  judgment  for  the  sale  of  spe- 
cific property,  as  in  cases  of  foreclosuxe,  may  be 
enforced  by  a  "writ  reciting  such  judgment"  {Code 
Civ.  Proc,  sec.  684),  such  "writ"  is  not  an  "execu- 
tion" which  must  be  enforced  and  returned  within 
the  statutory  time.  {Southern  Cal.  Lumber  Co.  v. 
Ocean  Beach  Hotel  Co.,  94  Cal.  217,  28  Am.  St. 
Rep.  115,  29  Pac.  627.) 

§  530.  Second  order  of  sale.  A  second  order  ot 
sale  may  issue  if  the  first  order  of  sale  be  not  exe- 


317  SHERIFF'S  SALES.  §§53^532 

cuted.  Such  second  order  might  in  some  cases  be 
ground  of  objection  on  the  score  of  costs,  but  it  is 
not  objectionable  as  affecting  the  validity  of  the  sale. 
[Shores  v.  Scott  River  Water  Co.,  17  Cal.  626.) 

§  531.    Order  of  sale — Designation  by  judgment 

debtor.  A  statute  providing  that  the  judgment  debt- 
or may  direct  the  order  in  which  property,  personal 
or  real,  shall  be  sold,  and  that  the  sheriff  shall  follow 
his  directions,  is  applicable  to  a  foreclosure  sale  when 
the  decree  is  silent  as  to  such  order.  A  sale  not  so 
conducted  is  not  void,  but  merely  voidable,  and  on 
timely  motion  the  court  should  ordinarily  set  it  aside. 
(Marston  v.  IF  kite,  91  Cal.  37,  27  Pac.  588.) 

The  well-established  rules  in  equity  proceedings 
require  in  foreclosure  cases  not  only  that  the  prop- 
erty should  be  sold  in  parcels,  but  that  the  property 
included  in  the  first  mortgage  should  be  exhausted 
before  recourse  is  had  to  the  second.  (Raun  v. 
Reynolds,  11  Cal.  14.    See,  also,  sec.  ^yi^  post.) 

In  the  absence  of  any  statutory  provision  as  to  the 
manner  of  making  sale  under  foreclosure  the  court 
has  jurisdiction  to  provide  in  the  decree  that  the 
property  be  sold  either  in  one  or  in  several  parcels, 
and  the  officer  making  the  sale  is  bound  to  follow 
such  directions.  {Hopkins  v.  Wiard,  72  Cal.  259, 
13  Pac.  687.) 

§  532.    Sale  of  both  real  and  personal  property. 

When  a  mortgage  covers  both  real  and  personal  prop- 
erty both  may  be  sold  under  decree  of  foreclosure 
and  transferred  by  the  sheriff's  deed,  if  no  redemption 
be  made.  {Tregear  v.  Etiioanda  JVater  Co.,  76  Cal. 
537,  9  Am.  St.  Rep.  245,  18  Pac.  658.) 


§§533-535       SHERIFFS  AND  CONSTABLES.  318 

§  533.  Appeal — Stay  of  proceedings.  Under  the 
California  practice  {Code  Civ.  Proc,  sec.  945), 
when  a  decree  of  foreclosure  provides  for  a  deficiency 
judgment,  execution  cannot  be  stayed  unless  the  un- 
dertaking on  appeal  provide  for  the  payment  of  the 
deficiency.  (Spence  v.  Scott  &  Ko<walsky,  95  Cal. 
152,  30  Pac.  202.) 

§  534.  Title  conveyed  by  foreclosure  sale.  When 
a  mortgage  conveys  the  estate  in  fee  the  title  of  a 
purchaser  at  a  foreclosure  sale  relates  back  to  the 
date  of  the  mortgage,  and  he  acquires  all  the  estate 
vested  in  the  mortgagor  at  that  time  and  also  that 
which  he  may  have  subsequently  acquired.  {Bar- 
nard V.  Wilson,  74  Cal.  512,  16  Pac.  307.  See,  also, 
sec.  503,  ante.) 

The  deed  of  the  sherifif  passes  fixtures  subsequently 
annexed  by  the  mortgagor.  {Sands  v.  Pfeiffer,  10 
Cal.  259.) 

§  535-  Removal  of  improvements.  The  sever- 
ance and  removal  of  a  house  from  the  freehold 
changes  the  character  of  the  house  from  real  to  per- 
sonal property,  whether  the  severance  is  by  the  act 
of  God  or  of  man. 

A  house  on  a  mortgaged  lot  in  Sacramento  was 
carried  by  the  flood  in  1862  into  the  street,  a  short 
distance  from  the  lot.  The  owner  made  a  contract 
with  one  Lowell  to  sell  him  the  house,  and  Lowell 
was  about  to  remove  it  when  the  mortgagee  brought 
an  action  to  foreclose  tlie  mortgage  and  to  restrain 
the  removal.  At  the  trial  the  court  rendered  a  judg- 
ment against  the  owner  of  the  lot  for  the  amount  due 
on  the  note,  and  a  decree  for  the  foreclosure  of  the 


319 


SHERIFF'S  SALES.  §§  536,  537 


mortgage  and  for  the  sale  of  the  mortgaged  prop- 
erty, excepting  the  house,  and  as  to  that  it  was  or- 
dered that  the  decree  should  not  afifect  nor  author- 
ize its  sale.  The  judgment  was  affirmed  on  appeal 
and  it  was  held  that  the  severance  and  removal  of  the 
house  withdrew  the  house  from  the  operation  of 
the  mortgage  lien,  and  that  after  the  removal  the 
mortgagor  or  his  assignee  had  a  right  to  sell  the 
house,  and  the  purchaser  to  convert  it  to  his  own  use. 
(Buckout  V.  Sivift,  27  Cal.  434,  87  Am.  90.) 

§  536.     Mortgage  of  partner's  interest.     If  two 

or  more  persons  are  partners  in  the  ownership  and 
management  of  real  estate,  and  owe  partnership 
debts,  and  one  of  the  partners  mortgages  his  interest 
in  the  property  to  secure  his  individual  debt,  the 
mortgagee  acquires  only  the  mortgagor's  interest  in 
the  surplus  after  the  payment  of  the  partnership 
debts;  and  if  these  equal  or  exceed  the  value  of  the 
property  and  it  is  afterwards  sold  by  the  partners 
to  pay  the  partnership  debts,  the  mortgagee  as  against 
the  purchaser  holds  no  interest  in  the  property  liable 
in  equity  to  be  sold,  and  the  mortgage  cannot  be  fore- 
closed.    (Jones  V.  Parsons,  25  Cal.  100.) 

§  537-  Redemption.  After  foreclosure  sale  re- 
demption may  be  made  in  the  same  manner  and  by 
the  same  persons  as  in  case  of  sales  under  writ  of 
execution,  which  subject  is  treated  in  this  work  in 
the  chapter  on  "Redemptions."  (McMillan  v.  Rich- 
ards, 9  Cal.  365,  70  Am.  Dec.  655;  Calkins  v.  Stein- 
bach,  66  Cal.  1 17,  4  Pac.  1 103.) 


§§  53^,  539       SHERIFFS   AND   CONSTABLES.  '        32O 

§  538.  Rights  of  mortgagor.  A  mortgagor,  after 
a  sale  of  the  mortgaged  premises  under  a  decree  in 
a  suit  to  foreclose  the  mortgage,  has  the  right  to  the 
use  and  possession  of  the  mortgaged  premises  until 
the  execution  of  the  sheriff's  deed,  but  he  possesses 
no  right  to  despoil  the  property  of  its  fixtures.  {See, 
also,  sees.  490,  491,  ante.) 

§  539.  Sale  by  commissioner.  Under  the  prac- 
tice in  California  since  1893  ^^^  court  may  by  its 
judgment  or  at  any  time  after  judgment  appoint  a 
commissioner  to  sell  the  encumbered  property.  If 
such  commissioner  be  appointed  he  shall  sell  it  in 
the  manner  provided  by  law  for  the  sale  of  like 
property  by  the  sheriff  upon  execution,  and  the  pro- 
visions of  chapter  i,  title  9,  part  II  of  the  Code  of 
Civil  Procedure,  relating  to  execution  sales,  are  made 
applicable  to  sales  made  by  such  commissioners,  and 
the  pow^ers  therein  given  and  the  duties  therein  im- 
posed on  sheriffs  are  extended  to  such  commissioners. 
( Code  Civ.  Proc.,  sec.  726.)  "The  commissioner,  be- 
fore entering  upon  his  duties,  must  be  sworn  to  per- 
form them  faithfully,  and  the  court  making  the  ap- 
pointment shall  require  of  him  an  undertaking,  with 
sufficient  sureties,  to  be  approved  by  the  court,  in  an 
amount  to  be  fixed  by  the  court,  to  the  effect  that  he 
will  faithfully  perform  the  duties  of  commissioner, 
according  to  law.  Within  thirty  days  after  such  sale, 
the  commissioner  must  file  with  the  clerk  of  the  court 
in  which  the  action  is  pending  a  verified  report  and 
account  of  the  sale,  together  with  the  proper  affida- 
vits, showing  that  the  regular  and  required  notice  of 
the  time  and  place  of  the  sale  was  given,  which  re- 
port and  account  shall  have  the  same  force  and  effect 


321  sheriff's   SALES.  §§540,541 

as  the  sherifif's  return  in  sales  under  execution.  In 
all  cases  of  sales  made  by  a  commissioner,  the  court 
in  which  the  proceedings  are  pending  shall  fix  a  rea- 
sonable compensation  for  the  commissioner's  services, 
but  in  no  case  to  exceed  the  sum  of  ten  dollars." 
{Code  Civ.  Proc,  sees.  726,  729.) 

§  540.  How  sale  should  be  conducted.  In  Cal- 
ifornia all  sales  of  property  under  execution  must 
be  made  at  auction  to  the  highest  bidder,  between  the 
hours  of  nine  in  the  morning  and  five  in  the  after- 
noon. If  the  sale  cannot  be  completed  in  one  day 
it  may  be  postponed  until  the  next  day  without  post- 
ing notices  of  the  postponement,  if  there  are  persons 
present  to  receive  the  proclamation  of  the  postpone- 
ment. 

"After  sufficient  property  has  been  sold  to  satisfy 
the  execution,  no  more  can  be  sold  under  that  writ. 
Neither  the  officer  holding  the  sale,  nor  his  deputy, 
can  become  a  purchaser  or  be  interested  in  any  pur- 
chase at  such  sale.  When  the  sale  is  of  personal 
property,  capable  of  manual  delivery,  it  must  be 
within  view  of  those  who  attend  the  sale,  and  be  sold 
in  such  parcels  as  are  likely  to  bring  the  highest  price. 
The  judgment  debtor,  if  present  at  the  sale,  may  di- 
rect the  order  in  which  property  shall  be  sold,  when 
such  property  consists  of  several  lots  or  parcels,  or 
of  articles  which  can  to  advantage  be  sold  separately, 
and  the  sheriff  must  follow  such  directions."  {Code 
Civ.  Proc.,  sec.  694.) 

§  541.     Penalty  for  selling  without  notice.     An 

officer  selling  without  giving  the  statutory  notice  for- 
feits five  hundred  dollars  to  the  aggrieved  party  in 


§§  542,  543       SHERIFFS   AXD   CONSTABLES.  322 

addition  to  his  actual  damages.  {California.  Code 
Civ.  Proc,  sec.  693.) 

The  remedy  against  a  sheriff  for  selling  property 
on  insufficient  notice  is  confined  to  the  statutory  rem- 
edy. (Smith  V.  Randall,  6  Cal.  47,  65  Am.  Dec. 
475  5  affirmed  in  Shores  v.  Scott  River  Water  Co.,  17 
Cal.  626;  also  cited  as  authority  in  Satterlee  v.  San 
Francisco,  23  Cal.  320;  and  see  Herzo  v.  San  Fran- 
cisco, 33  Cal.  140.)  The  statute  provides  an  adequate 
remedy  in  such  cases  by  an  action  against  the  officer, 
and  the  party  aggrieved  is  entitled  to  no  other  rem- 
edy. The  purchaser  at  such  sale  is  not  the  "aggrieved 
party"  within  the  meaning  of  the  law.  The  parties 
to  the  execution  are  the  "aggrieved  parties."  (Kelly 
V.  Desmond,  63  Cal.  517.) 

In  computing  the  time  of  giving  notice  of  the  sale 
the  day  on  which  the  sale  is  made  should  be  excluded. 

§  542.     Sale  after  return  day — When  valid.     A 

levy  made  at  any  time  before  the  return  day  of  the 
writ  is  good,  but  a  levy  made  after  the  return  day 
will  not  be  good  unless  the  delay  has  been  caused  by 
a  stay  of  proceedings.  Where  property  has  been 
levied  upon  and  there  is  not  sufficient  time  between 
the  date  of  the  levy  and  the  return  day,  the  officer 
may  nevertheless  proceed  to  advertise  and  sell  the 
property  under  the  writ,  and  the  sale  will  be  valid. 
(Freeman  on  Executions,  sec.  106;  Southern  Califor- 
nia Lumber  Co.  v.  Ocean  Beach  Hotel  Co.,  94  Cal. 
221,  28  A^n.  St.  Rep.  115,  29  Pac.  627.) 

§  543.  Postponement  of  sale.  If  there  are  no 
bidders  when  property  is  offered  at  sheriff's  sale  the 
sale  may  be  postponed  from  day  to  day  or  to  a  future 


323  SHERIFF'S  SALES.  §§  544,  545 

day  named;  but  where  publication  of  the  notice  of 
sale  is  required  to  be  made  once  a  week,  for  instance, 
the  publication  must  be  continued  every  week  with 
an  additional  postponement  notice. 

When  the  only  bids  made  are  palpably  dispropor- 
tionate to  the  value  of  the  property  the  officer  should 
adjourn  the  sale.  In  the  case  of  real  property  the 
officer  may  be  unable  to  judge  of  the  sufficiency  of  the 
bid,  for  the  reason  that  the  property  may  be  covered 
with  mortgages.  But  in  the  case  of  personal  prop- 
erty an  approximate  estimate  of  its  value  may  be 
arrived  at  by  the  officer.  Inadequacy  of  price  alone 
is  sufficient  to  authorize  a  court  to  set  aside  a  sale. 
A  sale  should  be  postponed  where  there  are  indica- 
tions on  the  part  of  bidders  of  collusion  to  depreciate 
the  sale  to  an  unreasonable  extent,  or  w^hen  the  officer 
has  reason  to  believe  that  he  can  realize  more  by  a 
sale  at  a  future  day. 

§  544.  Resale  where  bidder  refuses  to  pay.  ''If 
a  purchaser  refuse  to  pay  the  amount  bid  by  him  for 
property  struck  ofif  to  him,  .  .  .  the  officer  may  again 
sell  the  property  at  any  time  to  the  highest  bidder, 
an-d  if  any  loss  be  occasioned  thereby,  the  officer  may 
recover  the  amount  of  such  loss,  with  costs,  from  the 
bidder  so  refusing,  in  any  court  of  competent  juris- 
diction," and  "when  a  purchaser  refuses  to  pay,  the 
officer  may,  in  his  discretion,  thereafter  reject  any 
subsequent  bid  of  such  person."  (California.  Code 
Civ.  Proc,  sees.  695,  696.) 

§  545,  The  title  the  purchaser  secures.  A  sale 
of  personal  property  passes  to  the  purchaser  only 
such  title  as  the  judgment  debtor  had  on  the  dav  the 


§§  54^,  547       SHERIFFS  AND  CONSTABLES.  324 

attachment  or  execution  was  levied,  and  it  transfers 
only  what  the  debtor  himself  could  have  transferred. 
{Loivenberg  v.  Greenebaum,  99  Cal.  165,  37  Am. 
St.  Rep.  42,  33  Pac.  794,  21  L.  R.  A.  399;  Freeman 
on  Executions,  sec.  112;  California.  Code  Civ.  Proc, 
sees.  698-700.) 

§  546.    Judgment  is  payable  in  money  only.     A 

sheriff,  under  his  general  powers,  cannot  take  any- 
thing but  legal  currency  in  satisfaction  of  an  execu- 
tion, and  where  he  takes  a  note,  indorses  it  on  the 
execution,  and  then  returns  it  satisfied,  the  return  is 
not  conclusive,  and  perhaps  not  prirna  facie  evidence 
of  satisfaction,  unless  it  shows  some  authority  for 
receiving  the  note.  (Mitchell  v.  Hackett,  14  Cal. 
661.) 
j 

§  547.  Application  of  proceeds — Conflicting  at- 
tachments. When  a  sheriff  receives  money  on  exe- 
cution sale  of  property  levied  on  by  virtue  of  attach- 
ments, it  is  his  duty  to  apply  the  money  in  the  order 
of  the  attachments.  Where  there  are  several  attach- 
ments and  the  officer  receives  notice  that  the  senior 
attachment  is  defective  he  should  make  inquiry  there- 
on and  satisfy  himself  that  he  can  safely  pay  the 
money  upon  such  senior  attachment.  For  if  he  pay 
over  money  upon  a  void  writ,  he  will  be  responsible 
to  the  plaintiffs  under  the  junior  writs,  notwithstand- 
ing the  fact  he  may  urge  in  excuse  that  the  senior 
writ  was  regular  upon  its  face. 

It  is  not  only  a  frequently  quoted  principle  of  law, 
but  a  statutory  enactment,  that  "a  sheriff  or  other 
ministerial  officer  is  justified  in  the  execution  of,  and 
must  execute,  all  process  and  orders  regular  on  their 


325  sheriff's  sales.  §  547 

face,  and  issued  by  competent  authority,  whatever 
may  be  the  defect  in  the  proceedings  upon  which  they 
were  issued." 

However  bright  and  clear  the  protective  halo  of 
light  that  is  shed  upon  the  officer's  pathway  in  this 
broad  and  unambiguously  worded  declaration,  offi- 
cers frequently  stumble  into  difficulties  by  serving 
process  regular  on  their  face  and  issued  by  courts  of 
competent  authority.  For  it  is  an  equally  settled 
principle  that  no  person  can  be  divested  of  his  rights 
except  by  due  process  of  law;  and  officers  are  often 
called  upon  to  carry  out  the  judgments  of  courts 
under  the  authority  of  writs  regular  on  their  face 
which  have  been  wrongfully  issued.  (See,  also,  sec. 
345,  ante.) 

In  Bufifandeau  v.  Edmundson,  17  Cal.  441,  79  Am. 
Dec.  139,  the  court  say:  "It  is  no  part  of  the  sheriff's 
duty  to  sit  in  judgment  upon  official  acts  and  reform 
the  errors  or  revise  the  orders  of  a  judge."  Yet,  while 
a  sheriff  may  not  question  the  validity  of  a  writ,  he 
is  bound  to  protect  himself  from  loss  sought  to  be 
put  upon  him  while  in  the  faithful  discharge  of  his 
duties. 

In  an  action  on  a  sherifif's  bond  in  the  case  of  Mc- 
Comb  V.  Reed,  28  Cal.  281,  87  Am.  Dec.  115,  judg- 
ment was  rendered  against  the  officer  and  his  sureties 
for  not  applying  moneys  received  under  execution 
upon  plaintiff's  judgment.  There  were  two  writs  of 
attachment  under  which  the  property  was  taken,  the 
money  realized  on  the  sale  being  applied  to  the  junior 
writ.  The  reason  assigned  by  the  sheriff  was  that  the 
complaint  which  was  served  with  the  summons  in  the 
first  case  did  not  set  up  a  cause  of  action  which  would 
warrant  the  issuance  of  an  attachment.     The  court 


§  54^  SHERIFFS  AND   CONSTABLES.  326 

held,  notwithstanding,  that  the  writ  was  not  void,  and 
that  a  sheriff  who  receives  an  attachment  reguhir  on 
its  face  cannot  pay  over  the  money  obtained  by  him 
from  the  sale  of  property  levied  on  by  virtue  of  the 
writ  to  a  junior  attaching  creditor,  because  the  com- 
plaint in  the  action  on  which  the  first  attachment  was 
issued  did  not  set  forth  a  cause  of  action  upon  which 
an  attachment  could  issue. 

The  application  of  an  attaching  creditor  to  compel 
the  sheriff  to  pay  over  the  proceeds  of  goods  attached, 
there  being  conflicting  claims  between  several  attach- 
ing creditors,  may  be  made  by  motion.  If  notice  of 
the  motion  is  not  given  by  the  party  moving  to  the 
other  attaching  creditors  it  is  the  duty  of  the  sheriff 
to  do  so,  if  he  wishes  the  decision  to  bind  them. 
{Dixey  v.  Pollock,  8  Cal.  570.) 

§  548.    Conflicting  process  from  different  courts. 

One  court  cannot  enjoin  the  process  of  another  court 
of  co-ordinate  jurisdiction,  much  less  seize  the  pro- 
ceeds of  such  process.  (Weaver  v.  Wood,  49  Cal. 
300.)  If  two  attachments,  issued  out  of  different 
courts  at  different  times,  are  placed  in  a  sheriff's 
hands  and  both  are  levied  on  the  same  personal  prop- 
erty, and  the  court  out  of  which  the  latest  attachment 
issues  orders  the  property  sold  and  the  proceeds  de- 
posited with  its  clerk  and  the  sheriff  obeys,  and  the 
money  is  paid  to  the  second  attaching  creditor,  the 
sheriff  is  liable  to  the  first  attaching  creditor  for 
the  amount  for  which  he  recovers  judgment  or  for  the 
amount  of  the  proceeds,  if  less  than  the  amount  of 
the  judgment.  The  court  from  which  the  second 
attachment  issues  may  make  an  order  of  sale  of  the 
property,  but  it  has  no  power  to  dispose  of  the  fund 


327  sheriff's  sales.  §  549 

arising  from  the  sale  other  than  the  surplus  remaining 
after  the  claim  of  the  first  attaching  creditor  is  satis- 
fied. In  the  case  of  Weaver  v.  Wood,  the  sheriff  of 
Solano  County  had  two  attachments  issued  out  of 
different  courts,  and  by  order  of  the  court  from  which 
the  second  attachment  issued  sold  the  property  and 
paid  the  money  into  the  court,  from  which  it  was  paid 
to  the  plaintiff  in  the  second  attachment.  As  a  con- 
sequence the  sheriff  was  compelled  to  satisfy  the  first 
attachment  out  of  his  own  pocket.  On  appeal  the 
supreme  court  decided  that  the  sheriff,  having  both 
attachments  in  his  hands,  knew  the  extent  of  the  de- 
mand of  the  first  attaching  creditor  and  must  be  held 
to  have  known  that  the  fourth  district  court  could 
only  deal  with  the  excess  of  the  proceeds  of  the  sale 
over  that  demand.     {Weaver  v.  Wood,  49  Cal.  297.) 

§  549.  Payment  into  court  —  Disobedience  of 
void  order.  In  the  case  of  Brow^n  v.  Moore,  61  Cal. 
432,  an  application  for  a  writ  prohibiting  the  re- 
spondent from  proceeding  further  in  the  matter  of 
certain  contempt  proceedings  against  the  petitioners, 
the  court  rendered  the  following  opinion: — 

"From  the  verified  petition  it  appears  that  during 
the  month  of  April,  1882,  sundry  suits  at  law  were 
commenced  by  divers  persons,  against  one  Bartlett, 
in  the  justices'  courts  of  Amador  County  to  recover 
certain  moneys  alleged  to  be  due  from  Bartlett  to 
the  respective  plaintiffs  in  those  suits.  Judgment 
passed  for  the  plaintiffs  therein,  on  which  executions 
were  issued  and  placed  in  the  hands  of  the  petition- 
ers in  the  present  proceedings,  who  are  constables  in 
and  for  the  respective  towns  of  Amador  County,  in 
which  are  established  the  justices'  courts  that  ren- 


§  549  SHERIFFS  AND  CONSTABLES.  328 

dered  the  judgments.  The  executions  thus  issued 
and  delivered  to  the  petitioners  were  by  them,  as  such 
constables,  levned  on  certain  personal  property  of 
Bartlett.  On  the  iid  of  May,  1882,  a  judgment  was 
entered  in  the  superior  court  of  Amador  County 
against  Bartlett  and  in  favor  of  one  Post,  for  a  money 
demand;  and  on  this  judgment  execution  was  issued 
on  the  same  day  and  delivered  to  the  sheriff  of  Ama- 
dor County.  The  sheriff,  on  the  24th  of  May  follow- 
ing, levied  his  writ  by  delivering  to  each  of  the  con- 
stables (petitioners  here)  a  copy  of  the  same,  to- 
gether with  a  notice  that  all  the  property  of  the  de- 
fendant (Bartlett)  in  their  possession  and  under  their 
control  was  attached  in  pursuance  of  such  execution, 
and  demanded  of  them  the  possession  of  the  prop- 
erty. The  constables  refused  to  deliver  the  property 
to  the  sheriff,  and  the  next  day  the  latter  returned 
the  writ  to  the  superior  court,  stating  in  his  return, 
substantially,  the  facts  as  above  given.  On  the  27th 
of  May,  on  an  affidavit  made  on  behalf  of  Post  setting 
forth  that  the  judgments  rendered  by  the  justice's 
court  were  void,  the  judge  of  the  superior  court  made 
an  order  directing  the  constables  to  appear  before 
him  on  the  29th  of  the  same  month  and  show  cause 
why  they  should  not  surrender  the  property  to  the 
sheriff.  On  the  day  named  they  appeared  and  filed 
their  several  affidavits,  declaring  that  they  were  not 
debtors  of  Bartlett,  nor  had  they  any  property  of 
his  other  than  that  levied  on  and  held  by  them  under 
and  by  virtue  of  the'executions  first  above  mentioned. 
Thereupon  the  judge  refused  to  direct  the  constables 
to  deliver  the  property  to  the  sheriff,  but  on  the  same 
day  entered  an  order  in  the  following  words:  'It 
is  ordered,  adjudged,  and  decreed  that  plaintiff  here- 


329  sheriff's  sales.  §  549 

in  (Post)  is  authorized  to  institute  an  action  against 
each  of  said  persons,  to  wit :  C.  L.  French,  constable ; 
H.  B.  Templeton,  constable;  W.  H.  Brown,  con- 
stable; and  W.  Payton,  his  deputy  constable,  to  de- 
termine whether  or  not  the  said  persons  hold  and 
retain  said  property  adversely  to  the  defendant — said 
suits  to  be  commenced  within  thirty  days  from  the 
date  of  this  order.  And  it  is  further  ordered  that 
each  of  said  constables  is  given  leave  to  sell  the  said 
property  in  their  possession  belonging  to  said  defend- 
ant under  the  alleged  executions  in  their  hands,  and 
they,  and  each  of  said  constables,  is  ordered  to  pay  all 
the  proceeds  of  said  sales  of  property  to  the  clerk  of 
the  court  within  ten  days  after  the  sale  thereof.' 

"A  motion  was  subsequently  made  on  behalf  of  the 
constables  that  that  portion  of  the  order  of  May  29th 
purporting  to  authorize  them  to  sell  the  property  in 
their  possession  under  the  writs  of  execution  in  their 
hands,  and  requiring  them  to  pay  the  proceeds  of 
such  sales  to  the  clerk  of  the  superior  court,  be  set 
aside  on  the  ground  that  the  court  had  exceeded  its 
jurisdiction  in  so  ordering.    This  motion  was  denied. 

"The  constables  sold  the  property  under  and  by 
virtue  of  the  executions  held  by  them,  and  applied 
the  proceeds  to  their  satisfaction,  instead  of  paying 
them  to  the  clerk  of  the  superior  court,  as  directed  by 
the  order  of  May  29th;  and  upon  these  facts  being 
brought  to  the  notice  of  the  superior  court,  that  court 
made  an  order  to  the  effect  that  the  constables  be 
brought  before  the  court  at  a  time  stated,  and  show 
cause  why  they  should  not  be  adjudged  guilty  of 
contempt  of  court  in  failing  and  refusing  to  pay  the 
proceeds  of  the  sales  of  the  property  to  the  clerk, 
and  further  directing  a  warrant  of  attachment  to  be 


§  550  SHERIFFS  AND  CONSTABLES.  330 

issued  and  delivered  to  the  sheriff,  commanding  him 
forthwith  to  arrest  the  constables  and  hold  them  in 
his  custody,  unless  they  should  execute  an  undertak- 
ing in  the  sum  of  one  hundred  dollars  each  for  their 
appearance  on  the  day  named. 

"The  superior  court,  in  making  the  orders  com- 
plained of  by  the  petitioners,  was  proceeding  under 
the  supposed  authority  of  sections  717  and  720  of  the 
Code  of  Civil  Procedure.  Even  if  it  be  admitted 
that  those  sections  have  any  application  to  an  officer 
holding  property  of  a  judgment  debtor  by  virtue  of 
a  legal  process  issued  against  him,  neither  of  them 
confers  on  the  court  the  power  to  order  such  property 
sold,  nor  to  direct  that  the  proceeds  of  it  be  paid  to 
the  clerk  of  the  court.  (Hnrtman  v.  Olvera,  51  Cal. 
501.)  The  superior  court,  therefore,  exceeded  its 
power  in  making  the  order  requiring  the  petitioners 
to  pay  to  the  clerk  of  the  superior  court  the  proceeds 
of  the  property  sold  under  the  executions  held  by 
them  against  Bartlett.  For  the  disobedience  of  that 
void  order  the  petitioners  could  not  be  lawfully  pun- 
ished for  contempt.  The  proceedings  looking  to  that 
end  should,  therefore,  be  arrested.  (JVilliams  v. 
Dwinelle,  51  Cal.  422;  Quimbo  Appo  v.  People,  20 
A^.  Y.  531.)     Demurrer  overruled." 

§  550.  Senior  and  junior  writs.  When  an  of- 
ficer has  levied  upon  property,  he  may  hold  the  same 
under  subsequent  writs  that  may  come  into  his  hands, 
so  long  as  the  first  levy  remains  thereon.  The  re- 
ceipt of  subsequent  writs  operates  as  constructive 
levies  upon  the  goods  taken  under  the  prior  writ. 

If  a  second  execution  be  delivered  to  a  sheriff  after 
he  has  the  defendant's  goods  in  possession  under  the 


331 


SHERIFF'S  SALES.  §  55  ^ 


prior  execution  of  another,  the  goods  are  bound  by 
the  second  execution,  subject  to  the  first  execution. 

Where  A  and  B  issue  separate  executions,  and 
both  are  levied  upon  the  same  property  at  different 
times,  and  the  prior  execution  of  A  is  set  aside,  B  is 
entitled  to  be  paid  as  if  he  were  the  sole  execution 
creditor. 

When  a  second  execution  is  levied  upon  certain 
goods,  and  the  proceeds  afterwards  exhausted  by  the 
first  execution,  the  sheriff's  return  of  nulla  bona  upon 
the  second  execution  is  proper. 

Where  there  are  several  writs  of  attachment  levied 
upon  property,  the  first  writ  levied  holds  the  prop- 
erty to  satisfy  the  judgment  that  may  be  recovered 
under  that  writ;  and  when  an  execution  is  issued 
against  the  property,  whether  it  be  in  the  case  of  the 
first  attachment,  or  in  any  other,  the  property  may 
be  sold  under  such  execution;  but  under  whatever 
execution  the  property  be  sold,  the  judgment  under 
the  first  attachment  must  be  satisfied  first,  and  the 
proceeds  of  the  sale  must  be  held  by  the  ofiicer  for 
that  purpose  until  the  judgment  under  the  first  at- 
tachment is  rendered,  or  the  case  otherwise  disposed 
of.  The  judgments  under  the  senior  writs  of  attach- 
ment are  to  be  satisfied  in  the  order  in  which  they 
are  levied. 

§  551.    Payment  of  proceeds  of  the  sale.     If  the 

sheriff  neglects  or  refuses  to  pay  over  on  demand  to 
the  person  entitled  thereto  any  money  which  may 
come  into  his  hands  by  virtue  of  his  ofiice  (after 
deducting  his  legal  fees),  the  amount  thereof,  with 
twenty-five  per  cent  damages  and  interest  at  the  rate 
of  ten  per  cent  per  month  from  the  time  of  demand. 


§§  552-55^       SHERIFFS  AND   CONSTABLES.  332 

may  be  recovered  by  such  person.  {California.  Pol. 
Code,  sec.  4181.) 

§  552.    Surplus  to  be  returned  to  the  defendant. 

When  the  lien  of  an  attachment  is  satisfied,  the  prop- 
erty not  disposed  of  in  satisfaction  of  the  lien,  as 
well  as  the  surplus  moneys  that  may  remain  after 
the  sheriff's  sale  and  satisfaction  of  the  debt,  remain 
subject  to  the  rights  of  the  judgment  debtor  or  his 
assignee.     (Sexey  v.  Adkison,  40  Cal.  408.) 

§  553.    Death  of  the  defendant  after  levy.     The 

death  of  the  judgment  debtor  after  levy  of  execution 
does  not  afifect  the  lien  or  relieve  the  sherifif  of  his 
obligation  to  sell  the  property.  {Vermont  Marble 
Co.  V.  Superior  Court,  99  Cal.  579,  34  Pac.  326.) 

§  554.    Computation    of    interest    on    judgment. 

The  statutory  interest  on  the  judgment  is  to  be  com- 
puted from  the  date  of  its  entry,  and  not  from  the 
date  of  the  rendition  or  signing. 

§  555-  Sales — When  valid  and  when  void.  Sales 
to  a  bona  fide  purchaser  under  voidable  executions 
are  valid,  though  the  executions  be  afterwards  set 
aside,  but  sales  under  void  executions  are  invalid  and 
pass  no  title,  even  to  a  bona  fide  purchaser. 

§  556.  Sale  of  choses  in  action.  Wherever  choses 
in  action  are  liable  to  levy  and  sale,  they  must  be  in 
possession  of  the  officer  at  the  sale,  to  be  exhibited  to 
the  bystanders  and  assigned  to  the  purchaser,  unless 
a  full  and  accurate  description  of  the  particular  in- 
terest (where  it  is  a  contingent  and  complicated  con- 
tract) and  chose  in  action,  with  all  its  conditions  and 


333  SHERIFF'S  SALES.  §§  557,  558 

covenants,  and  a  full  explanation  of  the  facts  deter- 
mining the  value  of  the  chose,  be  given  by  the  levy 
and  announced  at  the  sale.  In  the  case  of  Crandall 
V.  Blen,  13  Cal.  20,  the  sherifif  levied  by  garnishment 
upon  a  written  contract  or  agreement,  but  did  not 
take  any  property  into  possession.  Notices  were  post- 
ed and  sale  had  and  the  agreement  was  struck  off  to 
the  plaintifif.  The  agreement  was  not  present  at  the 
sale,  nor  fully  explained  to  the  bystanders.  The  court 
held  that  no  title  whatever  passed  by  the  sale. 

§  557.  Sale  of  toll-road.  A  franchise  may  be 
treated  as  property  and  sold  under  execution.  Section 
388  of  the  California  Civil  Code  provides  that  "For 
the  satisfaction  of  any  judgment  against  any  person, 
company,  or  corporation,  having  any  franchise  other 
than  the  franchise  of  being  a  corporation,  such 
franchise,  and  all  the  rights  and  privileges  there- 
of, may  be  levied  upon  and  sold  under  execution,  in 
the  same  manner,  and  with  the  same  efTfect,  as  any 
other  property."  The  sheriff  is  required  to  give  to 
the  purchaser  at  such  sale  a  certificate  of  purchase. 
Such  sale  must  be  made  in  the  county  in  which  the 
corporation  has  its  principal  place  of  business,  or 
in  which  the  property  or  some  portion  thereof,  upon 
which  the  taxes  are  paid,  is  situated.  {California. 
Civ.  Code,  sees.  389,  393.) 

§  558.  Proceeds  of  mortgaged  property.  When 
personal  property  mortgaged  is  sold  at  foreclosure 
sale,  the  officer  must  apply  the  proceeds  of  the  sale 
as  follows:  (ist)  To  the  repayment  of  the  sum  paid 
to  the  mortgagee,  with  interest  from  the  date  of  such 
payment;  and  (2d)  the  balance,  if  any,  in  like  man- 
ner as  the  proceeds  of  sales  under  execution  are  ap- 


§§  559j  5^0       SHERIFFS  AND  CONSTABLES.  334 

plied  in  other  cases.      (California.     Civ.  Code,  sec. 
2970.) 

§  559.  Execution  sales  of  vessels.  When  an 
attachment  has  been  levied  upon  a  steamer,  vessel  or 
boat,  and  "the  attachment  be  not  discharged,  and  a 
judgment  be  recovered  in  the  action  in  favor  of  the 
plaintiff,  and  an  execution  be  issued  thereon,  the 
sheriff  must  sell  at  public  auction,  after  publication 
of  notice  of  such  sale  for  ten  days,  the  steamer,  ves- 
sel or  boat,  with  its  tackle,  apparel  and  furniture,  or 
such  interest  therein  as  may  be  necessary,  and  must 
apply  the  proceeds  of  the  sale  as  follows: — 

"i.  When  the  action  is  brought  for  demands  other 
than  the  wages  of  mariners,  boatmen,  and  others  em- 
ployed in  the  service  of  the  steamer,  vessel,  or  boat 
sold,  to  the  payment  of  the  amount  of  such  wages,  as 
specified  in  the  execution. 

"2.  To  the  payment  of  the  judgment  and  costs,  in- 
cluding his  fees. 

"3.  He  must  pay  any  balance  remaining  to  the 
owner,  or  to  the  master,  agent,  or  consignee,  who  may 
have  appeared  on  behalf  of  the  owner,  or  if  there  be 
no  appearance,  then  into  court,  subject  to  the  claim 
of  any  party  or  parties  legally  entitled  thereto." 
{California.     Code  Civ.  Proc,  sec.  824.) 

The  notice  of  sale  published  by  the  sheriff  must 
contain  a  statement  of  the  measurement  and  tonnage 
of  the  steamer,  vessel  or  boat,  and  a  general  descrip- 
tion of  her  condition.  {California.  Code  Civ.  Proc, 
sec.  327.) 

§  560.  Preferred  claims  against  vessels.  The 
only  preference  given  over  the  judgment  creditor,  in 


335  sheriff's  SALES.  §§561,562 

execution  sales  of  vessels,  is  in  the  case  of  claims  for 
wages  of  mariners,  boatmen,  and  others  employed 
in  the  service  of  the  vessel,  which  must  be  first  paid, 
provided  verified  claims  be  filed  as  provided  in  sec- 
tions 825  and  826  of  the  Code  of  Civil  Procedure. 
(See  Fisher  v.  White,  8  Cal.  418.) 

§  561.     Purchaser  entitled  to  certificate  of  sale. 

When  the  purchaser  of  any  personal  property  capa- 
ble of  manual  delivery  pays  the  purchase  money, 
the  officer  making  the  sale  must  deliver  to  the  pur- 
chaser the  property,  and,  if  desired,  execute  and  de- 
liver to  him  a  certificate  of  the  sale.  Such  certificate 
conveys  to  the  purchaser  all  the  right  which  the 
debtor  had  in  such  property  on  the  day  the  execution 
or  attachment  was  levied.  If  the  sale  is  of  personal 
property  not  capable  of  manual  delivery,  the  officer 
on  receipt  of  the  purchase  money  must  execute  and 
deliver  to  the  purchaser  a  certificate  of  sale,  and  such 
certificate  conveys  all  the  right  which  the  debtor  had 
in  such  property  on  the  day  the  execution  or  attach- 
ment was  levied.  {California.  Code  Civ.  Proc,  sec. 
698,  699.) 

A  sherifif's  bill  of  sale  of  personal  property  sold  on 
execution  need  not  contain  all  the  formalities  of  a 
regular  certificate.     {Lay  v.  Neville,  25  Cal.  546.) 

§  562.  Liability  for  wrongful  sale.  An  officer  is 
liable  to  the  owner  of  personal  property  for  the  seiz- 
ure and  sale  thereof  under  an  execution  against  a 
third  party,  and  he  is  not  relieved  from  liability  by 
professing  to  sell  only  the  "right,  title  and  interest" 
of  the  defendant. 


§§  5^3,  5^4       SHERIFFS  AND  CONSTABLES.  336 

§  563.  Notice  of  sale  under  execution.  Before 
the  sale  of  real  property  under  a  writ  of  execution 
notice  thereof  must  be  given  as  follows:  By  posting 
written  notice  of  time  and  place  of  sale,  "particular- 
ly describing  the  property,  for  twenty  days,  in  three 
public  places  of  the  township  or  city  where  the  prop- 
erty is  situated,  and  also  where  the  property  is  to  be 
sold,  and  publishing  a  copy  thereof  once  a  week 
for  the  same  period,  in  some  newspaper  of  general 
circulation,  printed  and  published  in  the  city  or  town- 
ship in  which  the  property  is  situated,  if  there  be  one, 
or,  in  case  no  newspaper  of  general  circulation  be 
printed  and  published  in  the  city  or  township,  in 
some  newspaper  of  general  circulation  printed  and 
published  in  the  county."  (California.  Code  Civ. 
Proc,  sec.  692;  Stats.   1907,  p.  980.) 

§  564.    When   and   how   real   property   must   be 
sold.     "All  sales  of  property  under  execution  must 
be  made  at  auction  to  the  highest  bidder,  between 
the  hours  of  nine  in  the  morning  and  five  in  the  after- 
noon.    After  sufficient   property  has  been   sold   to 
satisfy  the  execution,  no  more  can  be  sold.    Neither 
the  officer  holding  the  execution  nor  his  deputy  can 
become  a  purchaser  or  be  interested  in  any  purchase 
at  such  sale.    When  the  sale  is  of  personal  property, 
capable  of  manual  delivery,  it  must  be  within  view 
of  those  who  attend  the  sale,  and  be  sold  in  such 
parcels  as  are  likely  to  bring  the  highest  price;  and 
when  the  sale  is  of  real  property,  consisting  of  sev- 
eral known  lots  or  parcels,  they  must  be  sold  sep- 
arately; or  when  a  portion  of  such  real  property  is 
claimed  by  a  third  person,  and  he  requires  it  to  be 
sold  separately,  such  portion  must  be  thus  sold.    The 


337  sheriff's  sales.  §§  565-567 

judgment  debtor,  if  present  at  the  sale,  may  also  direct 
the  order  in  which  property,  real  or  personal,  shall 
be  sold,  when  such  property  consists  of  several 
known  lots  or  parcels,  or  of  articles  which  can  be 
sold  to  advantage  separately,  and  the  sherifif  must 
follow  such  directions."  (California.  Pol.  Code, 
sec.  694.) 

§  565.  Sale  without  notice.  Under  the  Califor- 
nia practice,  section  692  of  the  Code  of  Civil  Pro- 
cedure prescribes  the  manner  in  which  notice  of  sale 
must  be  given,  and  section  693  provides  that  ''an 
officer  selling  without  the  notice  prescribed  by  the 
last  section  forfeits  five  hundred  dollars  to  the  ag- 
grieved party,  in  addition  to  his  actual  damages." 
Similar  provisions  also  exist  in  other  states. 

§  566.    Purchaser  not  an  aggrieved  party.     The 

statutory  provision  relating  to  recovery  of  penalty  for 
officer  selling  real  property  under  execution  without 
notice  does  not  apply  to  the  purchaser  at  execution 
sale  without  notice.  Such  purchaser  is  not  the  "ag- 
grieved party"  within  the  meaning  of  the  section. 
The  parties  to  the  execution  are  the  "aggrieved  par- 
ties."     (Kelly  V.  Desmond,  63  Cal.  517.) 

§  567.  Recovery  for  sale  without  notice.  When 
the  statute  fixes  a  penalty  or  forfeiture  for  making 
sale  without  notice,  an  action  cannot  be  maintained 
by  the  defendant  in  an  execution  to  recover  of 
the  officer  the  penalty  prescribed  for  selling  without 
proper  notice,  unless  by  a  sale  so  made  the  complain- 
ant has  been  deprived  of  his  property.  If  the  at- 
tempted sale  is  a  nullity  and  passes  no  title,  no  injury 
has  been  sustained,  and  no  right  of  action  for  the 


§§  5^8-571       SHERIFFS  AND  CONSTABLES.  338 

forfeiture  accrues.  No  right  of  property  at  an  exe- 
cution sale  vests  in  the  purchaser  until  he  pays  the 
purchase  money,  and  until  this  is  done  the  sale  is 
not  so  far  perfected  as  to  constitute  the  foundation  of 
an  action  against  the  officer  to  enforce  a  forfeiture 
for  selling  without  the  prescribed  notice.  (Askew  v. 
Ebberts,  22  Cal.  263.     See,  also,  sec.  566,  ante.) 

§  568.     Sales    under    two    or    more    executions. 

When  an  officer  has  two  or  more  executions  levied 
upon  the  same  property,  he  may  advertise  the  same 
for  sale  in  one  series  of  notices;  and  the  notice  should 
describe  the  judgments  and  titles  of  the  different  cases 
under  which  the  levies  were  made. 

§  569.  Setting  aside  sheriff *s  sale.  A  court  of 
equity  will  not  set  aside  a  sheriff's  sale  and  a  deed 
executed  under  it  in  a  collateral  action  commenced 
for  that  purpose,  by  reason  of  irregularities  in  the 
conduct  of  the  officer  in  making  the  levy  and  sale. 
(Boles  V.  Johnson,  23  Cal.  226,  83  Am.  Dec.  in.) 

§  570.  Irregularities  of  sale — Remedy.  If  par- 
ties have  any  remedy  under  such  circumstances,  it  is 
by  motion,  properly  made  in  the  court  where  the 
judgment  was  rendered,  to  set  aside  the  sale.     (Id.) 

§571.    Justice^s    court    sale  —  Transcript.      Real 

estate  of  a  judgment  debtor  situated  in  the  county 
where  the  judgment  before  a  justice  of  the  peace  was 
rendered  may  be  sold  on  execution  upon  the  judg- 
ment, whether  a  transcript  of  the  judgment  be  filed 
in  the  office  of  the  recorder  of  such  county  or  not. 
(Campbell  v.  Wickware,  19  Cal.   145.)      No  filing 


339  sheriff's  sales.  §§  572-574 

of  such  transcript  with  the  recorder  is  necessary,  ex- 
cept as  to  property  situated  in  a  different  county. 

§  572,  Sale  to  be  made  in  parcels.  Statutory 
provision  is  usually  made  that  in  case  of  sale  of  "real 
property,  consisting  of  several  known  lots  or  parcels, 
they  must  be  sold  separately."  (California.  Code 
Civ.  Proc,  sec.  694.)  A  sale  not  so  conducted  is  not 
void,  however,  but  merely  viodable,  and  on  timely 
motion  the  court  should  ordinarly  set  it  aside  upon 
proper  showing.  While  the  rule,  when  laid  down  by 
statute,  is  controlling  and  should  be  strictly  followed, 
it  does  not  apply  where  each  distinct  parcel  is  first 
offered  for  sale  separately,  and  no  bids  are  received. 
In  such  case  the  property  may  then  be  offered  and 
sold  as  a  whole.  (Ontario  Land  and  Improvement 
Co.  V.  Bedford,  90  Cal.  181,  27  Pac.  39;  Marston  v. 
White,  91  Cal.  37,  27  Pac.  588.) 

§  573.  Sale  in  mass  by  agreement.  Frequently 
at  sheriff's  sales  property  consisting  of  separate  par- 
cels is  sold  in  mass  by  agreement  of  the  plaintiff  and 
defendant  in  the  execution,  and  where  such  sales  are 
made,  the  defendant  is  estopped  from  complaining. 
It  is  not  always  a  safe  plan  to  pursue,  however,  as 
the  judgment  debtor  in  the  execution  may  have  other 
creditors  who  would  be  injured  by  such  a  course. 

§  574.  Debtor  may  direct  order.  Statutory  pro- 
vision is  usually  made  to  the  effect  that  "the  judg- 
ment debtor,  if  present  at  the  sale,  may  also  direct 
the  order  in  which  property,  real  or  personal,  shall 
be  sold,  when  such  property  consists  of  several  known 
lots  or  parcels,  or  of  articles  which  can  be  sold  to 


§  575  SHERIFFS  AND  CONSTABLES.  340 

advantage  separately/'  {California.  Code  Civ. 
Proc,  sec.  694.) 

§  575-    Setting  aside  sale — Showing  required.     A 

sale  of  property  under  execution  will  not  be  set  aside 
because  sold  en  masse,  unless  it  appears  that  a  larger 
sum  would  have  been  realized  if  the  property  had 
been  sold  in  parcels  or  that  the  sale  of  less  than  the 
whole  tract  would  have  brought  sufficient  to  satisfy 
the  writ.  (Hudepohl  v.  Liberty  Hill  IV.  and  Mg. 
Co.,  94  Cal.  588,  28  Am.  St.  Rep.  149,  29  Pac.  1025.) 

A  sale  in  mass  of  real  estate  consisting  of  several 
known  and  distinct  parcels  at  a  price  greatly  below 
the  actual  value  of  the  property  cannot  be  sustained 
against  the  objection  of  the  judgment  debtor.  Such 
sales  are  not  absolutely  void,  but  are  voidable,  and 
will  be  set  aside  upon  reasonable  and  proper  applica- 
tion when  there  is  reasonable  ground  for  belief  that 
they  were  less  beneficial  to  the  creditor  or  debtor  than 
they  would  have  been  had  a  different  mode  been 
pursued.  {San  Francisco  v.  Pixley,  21  Cal.  57.)  In 
the  case  just  cited  the  sheriff  sold  a  tract  of  land  be- 
longing to  the  corporation,  one  mile  in  length  and 
half  a  mile  in  width,  which  had  long  previous  to  the 
sale  been  laid  out  into  blocks  and  streets  and  marked 
upon  the  official  map,  and  sold  the  same  in  mass,  for 
$360,  while  the  actual  value  was  $75,000.  The  sale 
was  set  aside  on  account  of  the  manner  in  which  it 
had  been  made. 

Where  the  land  sold  under  execution  consisted  of 
separate  but  adjoining  tracts,  but  the  sherifif  and  pur- 
chaser were  ignorant  of  the  subdivisions,  and  the  de- 
fendant failed  to  inform  the  sheriff  of  the  fact,  or  to 
direct  a  sale  by  parcels:    Held,  that  the  sale  of  the 


341  SHERIFF'S  SALES.  §§  576,  577 

land,  in  gross,  was  valid.     (Smith  v.  Randall,  6  Cal. 
47,  65  Am.  Dec.  475.    See,  also,  sec.  569,  ante.) 

576.  Unreasonable  delay  in  application.  A  sale 
of  real  property  in  mass  will  be  set  aside  upon  a 
proper  application  of  the  judgment  debtor  when 
made  in  reasonable  time  after  the  sale.  Such  a  sale, 
however,  will  not  be  set  aside  if  the  application  is 
not  made  within  a  reasonable  time.  It  was  held  in 
Vigoureux  v.  Murphy,  54  Cal.  346,  that  where  the 
application  to  avoid  the  sale  was  made  more  than 
three  years  after  the  sale  by  a  cross-complaint  to 
an  action  of  ejectment  brought  by  the  successor  of 
the  purchaser  the  application  came  too  late,  though 
the  sale  should  have  been  vacated  had  the  applica- 
tion been  made  immediately  on  the  return  by  the 
sheriff,  and  perhaps  if  it  had  been  made  within  the 
time  allowed  for  redemption.  ■■,^, 

§  577.  Sheriff *s  sales  not  credit  sales.  A  pur- 
chaser at  a  sheriff's  sale  acquires  no  right  whatever 
against  the  sheriff  for  property  sold  unless  at  the  time 
of  the  sale  he  pays  down  in  cash  the  whole  of  the 
purchase  money.  A  sheriff,  by  our  laws,  in  selling 
property  under  execution  is  not  bound  to  receive  any 
bid  except  for  cash  on  the  whole  amount  of  the  sale; 
and  having  received  a  bid  with  but  a  portion  of  the 
purchase  money  paid  at  the  time,  he  may  disregard 
the  bid,  and  offer  the  property  again  for  sale,  if  the 
balance  of  the  purchase  money  is  not  paid  before  the 
return  day  of  the  execution.  A  sheriff  is  not  bound 
to  demand  the  purchase  money  before  setting  aside 
the  bid,  but  the  delay  of  the  purchaser  until  the  re- 
turn day  of  the  execution  to  pay  the  balance  due  will 


§§  S7^}  579       SHERIFFS  AND  CONSTABLES.  342 

be  construed  into  a  refusal  on  his  part  to  pay  the 
amount  of  his  bid  upon  the  property.  {People  v. 
Hays,  5  Cal.  67.) 

In  an  action  against  a  purchaser  at  sheriff's  sale, 
for  not  paying  the  amount  of  his  bid,  it  cannot  be  set 
up  in  defense  that  no  sufficient  notice  of  the  sale  was 
given.  If  such  be  the  fact,  the  recourse  of  the  pur- 
chaser is  against  the  sheriflf.  {Harvey  v.  Fisk,  9  Cal. 
94-) 

§  578.  Sale  of  leasehold  interest  —  When  abso- 
lute. Upon  a  sale  of  real  property  the  purchaser  is 
substituted  to  and  acquires  all  the  right,  title,  inter- 
est, and  claim  of  the  judgment  debtor  thereto;  and 
when  the  sale  is  less  than  a  leasehold  of  two  years' 
unexpired  term,  the  sale  is  absolute.  In  all  other 
cases  the  property  is  subject  to  redemption.  {Cali- 
fornia.   Code  Civ.  Proc,  sees.  700,  702.) 

§  579.  Certificate  of  sale.  Section  700  of  the 
California  Code  of  Civil  Procedure  provides  that 
upon  the  sale  of  real  property  under  execution,  "the 
officer  must  give  to  the  purchaser  a  certificate  of  sale, 
containing:  (i)  A  particular  description  of  the  real 
property  sold;  (2)  the  price  bid  for  each  distinct  lot 
or  parcel;  (3)  the  whole  price  paid;  (4)  when  sub- 
ject to  redemption,  it  must  be  so  stated.  And  when 
the  judgment  under  which  the  sale  has  been  made  is 
made  payable  in  a  specified  kind  of  money  or  cur- 
rency, the  certificate  must  also  show  the  kind  of 
money  or  currency  in  which  such  redemption  may 
be  made,  which  must  be  the  same  as  that  specified  in 
the  judgment.  A  duplicate  of  such  certificate  must 
be  filed  by  the  officer  in  the  office  of  the  recorder  of 
the  county." 


343  sheriff's  sales.  §§  580-584 

§  580.    Title    under    sheriff's    certificate    of    sale. 

The  purchaser  of  real  property  at  a  sheriff's  sale  who 
receives  the  sheriff's  certificate  of  purchase  has  not  a 
title  to  the  property,  but  a  lien  on  the  same.  (Baber 
V.  McLeUan,  30  Ccii.  135.)  The  effect  of  such  cer- 
tificate is  spent  when  the  defendant  in  the  judgment 
redeems. 

§581.  Amendment  of  certificate.  A  sheriff's 
certificate  of  sale  made  to  the  wrong  person  may  be 
amended,  but  it  cannot  affect  a  redemption  already 
made  by  payment  to  the  person  named  in  the  original 
certificate  of  record.  {Pekin  Mining  Co.  v.  Ken- 
nedy, 81  Cal.  356,  22  Pac.  679.) 

§  582.  Redemption.  The  procedure  for  redemp- 
tion of  real  property  is  treated  at  length  in  the  chap- 
ter on  that  sucbject.     (Sees.  533-542,  ante.) 

§  583.    Resale   on   refusal   of   purchaser   to   pay. 

If  at  the  sale  the  purchaser  refuses  to  pay  the  amount 
of  the  bid,  the  property  may  be  offered  for  sale  again 
at  once  if  there  are  other  bidders  present.  But  if 
the  officer  learns  of  the  refusal  to  mal<:e  the  pay- 
ment after  the  time  fixed  for  the  sale  has  passed, 
notices  of  resale  should  be  posted,  and  the  property 
re-advertised.  {See,  also,  sees.  577,  ante;  sec.  584, 
post.) 

§  584.  Recovery  from  bidder.  If  a  purchaser 
refuse  to  pay  the  amount  bid  by  him  for  property 
struck  off  to  him  at  a  sale  under  execution,  the 
officer  may  again  sell  the  property  at  any  time  to 
the  highest  bidder,   and  if  any  loss  be  occasioned 


§§  5^5)  5^6       SHERIFFS  AND  CONSTABLES.  344 

thereby,  the  officer  may  recover  the  amount  of  such 
loss,  with  costs,  from  the  bidder  so  refusing,  in  any 
court  of  competent  jurisdiction.  (California.  Code 
Civ.  Proc,  sec.  695.) 

§  585.    Sale  passes  interest  acquired  after  levy, 

A  sherifif,  under  an  execution  issued  on  a  judgment 
which  is  not  a  lien,  can  only  seize  and  sell  such  title 
and  interest  as  the  judgment  debtor  had  in  the  land 
at  the  time  of  the  levy  and  such  as  he  acquired  be- 
tween the  time  of  the  levy  and  the  sale. 

If,  after  the  levy  of  an  execution  by  the  sheriff 
on  public  land  and  before  the  sale  the  judgment 
debtor,  being  pre-emptioner,  pays  for  the  land  levied 
on  and  obtains  a  certificate  of  purchase,  the  pur- 
chaser at  the  sheriff's  sale  succeeds  only  to  the  equi- 
table title  of  the  judgment  debtor,  who,  when  he  ob- 
tains the  legal  title  by  means  of  the  patent,  holds  it 
in  trust  for  the  purchaser  at  the  sheriff's  sale.  (Ken- 
yon  V.  Quinn,  41   Cal.  325.) 

§  586.  Title  of  purchaser  is  not  dependent  on 
sheriff's  return.  The  title  of  a  purchaser  of  real 
estate  at  sheriff's  sale  does  not  depend  upon  the  re- 
turn of  the  officer  to  the  writ.  The  purchaser  has  no 
control  over  the  conduct  of  the  officer  in  this  respect. 
(Cloud  V.  El  Dorado  Co.,  12  Cal.  129,  J-T,  Am.  Dec. 
526.)  While  it  is  undoubtedly  the  duty  of  the  sheriff 
to  make  a  return,  and  while  it  is  important  as  evi- 
dence of  a  permanent  and  authentic  character  that  he 
should  do  so,  the  title  of  the  purchase  does  not  de- 
pend upon  his  performance  of  this  duty.  The  pur- 
chaser rests  for  title  upon  the  judgment,  execution, 
levy,  sale,  and  deed;  and  he  need  shou'  no  more  to 


345  sheriff's  sales.  §§  587-590 

entitled  him  to  whatever  rights  the  defendant  in 
execution  had  in  the  property  sold.  In  Oregon  and 
Washington,  however,  execution  sales  must  be  re- 
ported and  confirmed  at  the  next  term  of  court. 

§  587-  Title  when  attachment  irregular — Inter- 
vening purchaser.  Unless  the  record  shows  that 
the  levy  of  attachment  is  made  in  accordance  with 
the  statute  a  purchaser  at  execution  sale  acquires  no 
title  as  against  the  grantee  of  the  attachment  debtor 
by  conveyance  after  attachment  and  before  sale. 
{Schwartz  v.  Coivell,  71   Cal.  306,   12  Pac.  252.) 

§  588.    Conveyance  by  debtor  after  attachment. 

If  the  judgment  debtor  make  sale  of  real  property 
after  valid  levy  of  attachment  and  before  judgment, 
while  no  judgment  lien  will  attach  to  the  property, 
yet  the  title  of  a  purchaser  at  execution  sal^  will 
prevail  over  the  title  of  such  grantee  of  the  debtor. 
{Riley  v.  Nance,  97  Cal.  203,  31  Pac.  11 26,  32  Pac. 

§  589.    Purchaser's    title    dependent    upon    valid 

unsatisfied  judgment.  A  purchaser  at  an  execution 
sale  must  see  at  his  peril  that  there  is  a  valid  judg- 
ment in  existence  and  that  the  same  has  not  been 
vacated  or  satisfied  in  any  way,  directly  or  indirectly; 
otherwise  the  power  to  make  the  sale  has  been  de- 
stroyed. {Billiard  V.  McArdle,  98  Cal.  355,  35  Am. 
St.  Rep.  176,  23  P^c-  I93-) 

§  590.  Rights  of  innocent  purchaser.  An  inno- 
cent purchaser  of  property  sold  under  execution, 
who,  as  assignee  of  a  redemptioner's  right  to  a  sher- 
ifif's  deed,  obtains  title  without  notice  of  any  irregu- 


§  591  SHERIFFS  AND  CONSTABLES.  346 

larity  in  the  sale  will  be  protected  therefrom. 
(Hudepohl  v.  Liberty  Hill  JV.  and  Mg.  Co.,  94 
Cal.  588,  28  Am.  St.  Rep.  149,  29  Pac.  1025.) 

§591.    Relief  of  purchaser — Caveat  emptor.    The 

doctrine  of  caveat  emptor  applies  only  to  sales  made 
upon  valid  judgments,  and  is  usually  invoked  with 
reference  to  sales  upon  execution  issued  against  the 
general  property  of  a  judgment  debtor.  In  these  lat- 
ter cases  a  defect  of  title  is  no  ground  for  interference 
with  the  sale  or  a  refusal  to  pay  the  price  bid.  The 
purchaser  takes  upon  himself  all  the  risks  as  to  the 
title  and  bids  with  full  knowledge  that  in  any  event 
he  only  acquires  such  interest  as  the  debtor  possessed 
at  the  date  of  the  levy  or  the  lien  of  the  judgment, 
and  that  he  may  possibly  acquire  nothing. 

A  somewhat  different  rule  prevails  in  cases  where 
particular  property  is  the  subject  of  sale  by  a  specific 
adjudication,  as  where  the  interest  of  A  in  a  certain 
tract  is  decreed  to  be  sold.  To  the  validity  of  a  de- 
cree of  this  character  the  presence  of  A  is  essential; 
and  where  present,  the  decree  binds  him  and  is  effect- 
ual by  the  sale  it  orders  to  transfer  his  estate.  A 
valid  decree  in  a  mortgage  case  operates  upon  such 
interest  as  the  mortgagor  possessed  in  the  property 
at  the  execution  of  the  mortgage.  That  interest  may 
not  constitute  a  valid  title— it  may  not  in  fact  be  of 
any  value — and  the  purchaser  takes  that  risk.  To 
that  extent  the  doctrine  of  caveat  emptor  applies 
even  in  those  cases  and  in  all  cases  of  adjudication 
upon  specific  interests,  but  no  further.  The  interest 
specifically  subject  to  sale,  whatever  it  may  be  worth, 
a  purchaser  is  entitled  to  receive;  it  is  for  that  inter- 
est he  makes  his  bid  and  pays  his  money.  (Boggs 
V.  Har grave,  16  Cal.  559.    See,  also,  sec.  594,  post.) 


347  sheriff's  sales.  §§  592-594 

§  592.  Relief  in  discretion  of  the  court.  Where 
there  has  been  a  defect  in  the  proceedings  on  an  exe- 
cution sale,  rendering  the  purchaser's  title  defective, 
the  nature  and  extent  of  the  relief  are  matters  resting 
very  much  in  the  sound  discretion  of  the  court.  As 
a  general  rule  the  purchaser  will  be  released  and  a 
resale  ordered,  or  such  new  or  additional  proceedings 
directed  as  may  obviate  the  objections  arising  from 
those  originally  taken,  when  the  consequences  of  the 
mistake  are  such  that  it  would  be  inequitable  either 
to  the  purchaser  or  to  the  parties  to  allow  the  sale 
to  stand.  But  when  relief  is  sought  in  one  action 
from  a  purchase  made  upon  a  mistake  of  law  as  to 
the  effect  of  a  decree  rendered  in  another  action,  it 
seems  that  the  ordinary  rules  as  to  mistakes  of  law 
should  apply;  and  from  such,  courts  of  equity  seldom 
relieve.  {Goodenow  v.  Ewer,  16  Cal.  461,  76  Am 
Dec.  540.) 

§  593      When  purchaser  cannot  recover.     In  the 

case  mentioned  in  the  preceding  paragraph  it  was 
held,  also,  that  the  purchasers  cannot  be  reimbursed 
in  the  amount  bid,  even  though  they  acted  under  a 
mistake  as  to  the  effect  of  the  decree  and  sale  there- 
under; that  their  mistake  was  one  of  law,  against 
which  courts  of  equity  seldom  relieve  in  an  indepen- 
dent action — the  weight  of  authority  in  the  United 
States  being  not  to  relieve,  unless  the  mistake  be  ac- 
companied with  special  circumstances,  such  as  mis- 
representations, undue  influence  or  misplaced  con- 
fidence. 

§  594.     Where   misrepresentation   used.      Where 
a  party  purchased  real  estate  at  an  execution  sale 


§§  595)  59^       SHERIFFS  AND  CONSTABLES.  348 

upon  the  faith  of  the  representations  of  the  judgment 
creditor  that  his  judgment  was  the  first  on  the  prop- 
erty, when  in  fact  there  were  prior  encumbrances  on 
it  of  more  than  its  value:  Held,  that  the  purchaser 
should  be  relieved,  and  the  judgment  creditor  should 
be  estopped  from  claiming  an  advantage  resulting 
from  his  own  misrepresentations.  It  makes  no  dif- 
ference whether  the  misrepresentations  were  made 
willfully  or  ignorantly,  or  that  the  action  against  the 
purchaser  was  brought  in  the  name  of  the  sheriff. 
Ordinarily,  the  maxim  of  caveat  emptor  applies  to 
judicial  sales,  but  it  has  many  limitations  and  excep- 
tions. (Webster  v.  Haivorth,  8  Cal.  21,  68  Am.  Dec. 
287.    See,  also,  sec.  591,  ante.) 

§  595.  Sheriff's  deed.  "If  no  redemption  be  made 
within  twelve  months  after  the  sale,  the  purchaser,  or 
his  assignee,  is  entitled  to  a  conveyance;  or,  if  so  re- 
deemed, whenever  sixty  days  have  elapsed,  and  no 
other  redemption  has  been  made,  and  notice  thereof 
given,  and  the  time  for  redemption  has  expired,  the 
last  redemptioner,  or  his  assignee,  is  entitled  to  a 
sheriff's  deed."      {California.    Code  Civ.  Proc,  sec. 

703-) 

§  596.  Deed  by  successor.  "When  the  sheriff 
sells  real  estate  under  and  by  virtue  of  an  execution 
or  order  of  court,  he,  or  his  successors  in  office,  shall 
execute  and  deliver  to  the  purchaser  or  purchasers, 
all  such  deeds  and  conveyances  as  are  required  by 
law  and  necessary  for  the  purpose,  and  such  deeds  and 
conveyances  shall  be  as  valid  in  law  as  if  they  had 
been  executed  by  the  sheriff  who  made  the  sale." 
{California.    County  Govt.  Act,  sec.  107;  Stats  1893, 

P-  373-) 


349 


sheriff's  sales.  §§  597,  598 


§  597.     Deed    relates    back    to    attachment.      A 

sheriff's  deed  executed  after  execution  sale  in  an 
attachment  suit  takes  effect  from  the  date  of  the  at- 
tachment if  the  levy  was  such  as  to  create  a  lien. 
(Ri/cy  V.  Nance,  97  Cal.  203,  31  Pac.  1126,  32  Pac. 

315-) 

§  598.  Cloud  on  title.  An  officer  is  bound  to 
levy  upon  the  defendant's  interest  in  real  estate  when 
instructed  to  do  so  even  though  the  records  may  show 
prtjna  facie  that  the  defendant  has  transferred  his 
interest  in  the  property  to  a  third  party.  But  the 
party  who  has  succeeded  to  that  interest  may  have  his 
remedy.  There  are  numerous  decisions  in  our  own 
courts  declaring  the  right  of  the  party  injured  by 
such  cloud  upon  title  to  his  remedy.  In  Pixley  v. 
Huggins,  15  Cal.  129,  it  is  held  that  a  deed  from  a 
sheriff  upon  an  execution  sale  against  the  vendor  of 
plaintiff  would  have  the  same  effect  in  casting  a 
cloud  upon  the  title  as  if  the  deed  were  made  directly 
by  such  vendor.  Such  a  deed  from  the  sheriff  put 
on  record  would  create  doubts  as  to  the  validity  as 
against  the  judgment  creditor  of  the  previous  trans- 
fer to  plaintiff. 

The  jurisdiction  of  a  court  to  enjoin  a  sale  of  real 
estate  is  coextensive  with  its  jurisdiction  to  set  aside 
and  order  to  be  cancelled  a  deed  of  such  property. 
It  is  not  necessary  for  its  assertion  in  the  latter  case 
that  the  deed  should  be  operative  if  suffered  to  re- 
main uncancelled  to  pass  the  title  or  that  the  defense 
to  the  deed  should  rest  in  extrinsic  evidence  liable 
to  loss  or  be  available  only  in  equity.  It  is  sufficient 
to  call  into  exercise  the  jurisdiction  of  the  court  that 
the  deed  casts  a  cloud  over  the  title  of  the  plaintiff. 


§  599  SHERIFFS  AND  CONSTABLES.  350 

As  in  such  case  the  court  will  remove  the  cloud  by 
directing  a  cancellation  of  the  deed,  so  it  will  inter- 
fere to  prevent  a  sale,  from  which  a  conveyance 
creating  such  a  cloud  must  result.  Where  property 
rights  are  thus  involved  the  officer  may  resort  for 
his  protection  to  proceedings  provided  for  in  section 
689  of  the  Code  of  Civil  Procedure  and  secure  in- 
demnity. 

A  sheriff's  sale  of  real  property,  under  a  judgment 
for  the  foreclosure  of  a  lien  would  not  create  a 
cloud  upon  the  title  or  in  any  manner  afifect  the  rights 
of  one  owning  the  fee  and  in  the  actual  possession  of 
the  land,  but  not  a  party  to  the  judgment.  (Arch- 
bishop of  San  Francisco  v.  Shipman,  69  Cal.  586, 
II  Pac.  343.) 

§  599.     Satisfaction   of   mortgage   by   sheriff   or 

commissioner.  Section  675a  of  the  California  Code 
of  Civil  Procedure  provides:  "Whenever  a  mortgage 
on  real  property  is  foreclosed  in  this  state  and  the 
property  covered  by  such  mortgage  is  sold  under 
and  pursuant  to  the  decree  of  foreclosure  entered  in 
the  action  in  which  such  foreclosure  is  had,  it  shall 
be  the  duty  of  the  sheriff,  or  commissioner  \^Code  Civ. 
Proc,  sec.  726]  making  the  sale,  as  the  case  may  be, 
within  five  days  after  the  purchaser  at  the  sale  be- 
comes entitled  to  a  deed  from  such  sheriff,  or  com- 
missioner thereunder,  to  enter  upon  the  margin  of  the 
county  records  where  such  mortgage  is  recorded,  if 
the  same  be  recorded,  a  satisfaction  of  the  same. 
Such  satisfaction  shall  be  substantially  in  the  fol- 
lowing form:^ — ■ 

"Full  satisfaction  and  discharge  of  the  within 
mortgage    by    foreclosure    is    hereby    entered    this 


351  sheriff's  SALES.  §600 

day  of 19 Decree 

of  foreclosure  entered  the day  of 

19.  .  .  .  in  cause  No entitled vs. 

Sale  under  such  decree  had  the 

day  of 19 


"Sheriff  (Commissioner)." 


§  600.    Service  of  final  process  in  new  counties. 

In  all  cases  where  new  counties  have  been  or  may 
hereafter  be  created,  and  executions,  orders  of  sale 
upon  foreclosure  of  mortgages,  or  other  process 
affecting  specific  real  estate,  have  been  or  may  here- 
after be  adjudged  by  the  final  judgment  or  decree  of 
a  court  of  competent  jurisdiction  to  be  executed  by 
the  sheriff  of  the  county  in  which  such  real  estate  was 
originally  situated,  such  process  may  be  executed  by 
the  sheriff  of  the  new  county  in  which  such  real 
estate  is  found  to  be  situated,  with  the  like  effect 
as  if  he  were  the  sheriff  of  the  county  designated  in 
the  judgment,  decree,  or  order  of  sale,  to  execute  the 
same.      {California.     Stats.   1873- 1874,  p.  365.) 


CHAPTER  XX. 

FRAUDULENT  TRANSFERS. 

§  6oi.  Fraudulent  transfers,  generally. 

§  602.  Code  provisions  in  California. 

§  603.  General  principles — Leading  cases. 

§  604.  Nature  of  the  transfer  required. 

§  605.  Change  of  possession  a  question  of  fact. 

§  606.  Remedy  of  the  creditor. 

§  607.  Resumption  of  possession. 

§  608.  Subsequent  employment  of  vendor. 

§  609.  Sale  of  property  in  vendee's  possession. 

§  610.  Property  in  hands  of  third  party. 

§611.  Transfer  of  cumbrous  personal  property. 

§  612.  Transfer  of  lodging-house  furniture. 

§  613.  Transfer  of  undivided  interest. 

§  614.  Personal  property  on  land  conveyed. 

§  615.  Cattle,  hogs,  etc.,  on  a  ranch. 

§  616.  Purchasers  in  good  faith. 

§  601.     Fraudulent  transfers,  generally.     One  of 

the  most  difficult  obstacles  encountered  by  officers  in 
holding  property  belonging  to  the  judgment  debtor 
in  executions  arises  from  the  facility  with  which 
transfers  may  be  made  of  personal  property.  As  if 
in  contemplation  of  fraudulent  intention  on  the  part 
of  vendors  who  are  or  are  about  to  become  insolvent 
the  law  has  often  hedged  such  sales  around  with 
strongly  expressed  provisions  in  favor  of  the  cred- 
itor who  is  in  pursuit  of  his  claim.  Not  only  are 
transfers  declared  to  be  void  which  are  proven  to 
be  fraudulent,  but  the  burden  of  proving  fraud  is  in 
some  cases  by  statute  not  only  removed  from  the 


353  FRAUDULENT  TRANSFERS.  §  6o2 

creditor,  but  transfers  under  certain  circumstances 
are  to  be  conclusively  presumed  to  be  fraudulent. 
{See  sec.  6o2,  post.) 

Where  the  presumption  prevails  to  such  extent 
an  inquiry  into  the  consideration  paid  or  the  good 
faith  of  the  transaction  is  immaterial.  {JVoods  v. 
Bugbey,  29  Cal.  467;  Broun  v.  O'Neal,  95  Cal.  262, 
29  Am.  St.  Rep.  1 1 1,  30  Pac.  538.) 

§  602.     Code    provisions    in    California.     By  the 

terms  of  section  3440  of  the  Civil  Code: — 

"Every  transfer  of  personal  property,  other  than  a 
thing  in  action,  or  a  ship  or  cargo  at  sea  or  in  a 
foreign  port,  and  every  lien  thereon,  other  than  a 
mortgage,  when  allowed  by  law,  and  a  contract  of 
bottomry  or  respondentia,  is  conclusively  presumed, 
if  made  by  a  person  having  at  the  time  the  possession 
or  control  of  the  property,  and  not  accompanied  by 
an  immediate  delivery,  and  followed  by  an  actual  and 
continued  change  of  possession  of  the  things  trans- 
ferred, to  be  fraudulent,  and  therefore  void,  against 
those  who  are  his  creditors  while  he  remains  in  pos- 
session, and  the  successors  in  interest  of  such  cred- 
itors, and  against  any  persons  on  whom  his  estate 
devolves  in  trust  for  the  benefit  of  others  than  himself, 
and  against  purchasers  or  encumbrancers  in  good 
faith  subsequent  to  the  transfer." 

All  transfers  of  personal  property  founded  in 
actual  fraud  are  also  declared  to  be  void  as  against 
creditors.     (Civ.  Code,  sec.  3439.) 

In  this  state  the  statute  stands  upon  the  extremest 
rule  of  caution  and  promptitude.  The  statute  makes 
certain  facts  conclusive  evidence  of  fraud,  and  what- 
ever may  or  may  not  be  the  actual  intention  of  the 


§  603  SHERIFFS  AND  CONSTABLES.  354 

parties,  if  the  actual  facts  exist  which  are  contem- 
plated by  the  law,  the  sale  is  void.  The  language  of 
the  statute  is  exceedingly  strong,  and  the  intention 
manifest.  The  change  of  possession  from  the  vendor 
to  the  vendee  must  not  only  be  actual  but  also  con- 
tinued. The  object  of  the  statute  being  the  preven- 
tion of  fraudulent  sales  of  goods,  no  means  more 
simple  and  efficient  could  have  been  adopted  to  have 
accomplished  the  end  intended  than  that  requiring 
this  actual  and  continued  change  of  possession.  It 
takes  away  from  the  parties  the  means  of  carrying 
out  their  fraudulent  intent  and  removes  the  tempta- 
tion. As  the  fraudulent  vendor  cannot  remain  in 
possession  under  any  pretense  whatever  he  is  com- 
pelled to  trust  entirely  to  the  fidelity  of  the  fraudulent 
vendee. 

§  603.  General  principles — Leading  cases.  There 
are  numerous  instances  of  record  in  which  courts 
have  been  called  upon  to  make  a  practical  applica- 
tion of  the  principle  that  a  vendee  of  personal  prop- 
erty must  assume  at  once  all  external  indicia  of  title 
in  order  to  protect  himself  against  the  creditors  of 
the  vendor.  The  leading  case  in  California  is  that 
of  Stevens  v.  Irwin,  15  Cal.  503,  76  Am.  Dec.  500. 
In  that  case  the  court  said : — 

"The  word  'actual'  was  designed  to  exclude  the 
idea  of  a  mere  formal  change  of  possession,  and  the 
word  'continued'  to  exclude  the  idea  of  a  mere  tem- 
porary change.  But  it  never  was  the  design  of  the 
statute  to  give  such  extension  of  meaning  to  this 
phrase,  'continued  change  of  possession,'  as  to  re- 
quire that  the  vendor  should  never  have  any  control 
over  or  use  of  them.     This  construction,   if  made 


355  FRAUDULENT  TRANSFERS.  §  603 

without  exception,  would  lead  to  very  unjust  and 
very  absurd  results. 

"The  'continued  change  of  possession,'  then,  does 
not  mean  a  continuance  for  all  time  of  this  possession, 
or  a  perpetual  exclusion  of  all  use  or  control  of  the 
property  by  the  original  vendor.  A  reasonable  con- 
struction must  be  given  to  this  language,  in  analogy 
to  the  doctrines  of  the  courts  holding  the  general 
principles  transcribed  into  the  statute.  The  delivery 
must  be  made  of  the  property;  the  vendee  must  take 
the  actual  possession;  that  possession  must  be  open 
and  unequivocal,  carrying  with  it  the  usual  marks 
and  indications  of  ownership  by  the  vendee.  It  must 
be  such  as  to  give  evidence  to  the  world  of  the  claims 
of  the  new  owner.  He  must,  in  other  words,  be  in 
the  usual  relation  to  the  property  which  owners  of 
goods  occupy  to  their  property.  This  possession  must 
be  continuous — not  taken  to  be  surrendered  back 
again — not  formal  but  substantial.  But  it  need  not 
necessarily  continue  indefinitely,  when  it  is  bona  fide 
and  openly  taken,  and  is  kept  for  such  a  length  of 
time  as  to  give  general  advertisement  to  the  status 
of  the  property  and  the  claims  to  it  by  the  vendee." 

This  case  has  been  cited  and  quoted  with  approval 
in  a  long  line  of  cases  from  Ricketson  v.  Richardson, 
19  Cal.  334,  to  Porter  v.  Bucher,  98  Cal.  454,  33 
Pac.  335.  In  Godchaux  v.  Mulford,  26  Cal.  323, 
85  Am.  Dec.  178  {see,  also,  this  section,  post),  the 
court  say  that  in  Stevens  v.  Irwin,  for  the  first  time 
in  this  state,  the  true  and  rational  exposition  of  the 
rule  was  given.     {See,  also,  sec.  604,  post.) 

In  Godchaux  v.  Mulford,  26  Cal.  316,  85  Am. 
Dec.  178,  another  leading  case,  the  court  said:  "A 
hired  clerk  or  salesman  is  no  more  in  possession  of 


§  604  SHERIFFS  AND  CONSTABLES.  356 

the  goods  of  his  employer  than  a  hired  laborer  is  in 
possession  of  the  farm  on  which  he  is  employed  at 
work.  The  employment  of  the  vendor  in  a  sub- 
ordinate capacity  is  colorable  only  and  not  conclu- 
sive upon  the  question  as  to  whether  there  has  been 
an  immediate  delivery  and  an  actual  change  of  the 
possession.  He  cannot  be  allowed  to  remain  in  the 
apparently  sole  and  exclusive  possession  of  the  goods 
after  the  sale,  for  that  would  be  inconsistent  with 
such  an  open  and  notorious  delivery  and  actual 
change  as  the  statute  exacts  in  order  to  exclude  from 
the  transaction  the  idea  of  fraud.  But  if  it  be  appar- 
ent to  all  the  world  that  he  has  ceased  to  be  the 
owner,  and  another  has  acquired  and  openly  occu- 
pied that  position,  that  he  has  ceased  to  be  the  prin- 
cipal in  the  change  and  management  of  the  concern, 
and  become  only  a  subordinate,  or  clerk,  the  reason 
of  the  rule  announced  in  the  statute  is  satisfied." 
This  case  has  been  cited  on  this  point  with  approval 
in  Woods  v.  Bugbey,  29  Cal.  472;  Goldstein  v.  Nu- 
nan,  66  Cal.  544,  6  Pac.  451  ;  Bell  v.  McClellan,  67 
Cal.  285;  Gould  V.  Huntley,  73  Cal.  402,  15  Pac.  24, 
and  in  O'Gara  v.  Lowry,  5  Mont.  427,  5  Pac.  583 
(1885),  the  above  language  was  quoted  with  ap- 
proval.    {See,  also,  sec.  608,  post.) 

§  604.     Nature    of   the   transfer   required.      The 

actual  change  of  possession  of  personal  property  re- 
quired by  the  statute  is  an  open,  visible  change  mani- 
fested by  such  outward  signs  as  render  it  evident  that 
the  possession  of  the  vendor  has  wholly  ceased. 
"Then,  if  the  possession  of  the  property  by  the  ven- 
dors had  not  wholly  ceased  when  it  was  attached,  it 
was  liable  to  the  attachments,  notwithstanding,   as 


357  FRAUDULENT  TRANSFERS.  §  605 

between  the  vendors  and  vendee,  the  sale  was  com- 
plete and  the  title  to  the  property  had  become  vested 
in  the  plaintiff  as  the  purchaser."  [Calioon  v.  Mar- 
shall, 25  Cal.  201.  See,  also,  sec.  614,  post.)  This 
case  was  also  cited  with  approval  in  Bell  v.  McClel- 
lan,  67  Cal.  285,  7  Pac.  699;  Gould  v.  Huntley,  73 
Cal.  402,  15  Pac*  24;  Bunting  v.  Saltz,  84  Cal.  171, 

24  Pac.  167,  and  Etchepare  v.  Aguirre,  91  Cal.  295, 

25  Am.  St.  Rep.  180,  27  Pac.  668.  {See,  also,  sec. 
603,  ante.) 

Under  a  statute  requiring  "an  immediate  delivery" 
of  personal  property  sold,  any  delivery  that  is  suffi- 
cient to  pass  the  title  as  between  the  parties  is  suffi- 
cient. The  further  requirement  of  an  "actual  and 
continued  change  of  possession"  (California.  Code 
Civ.  Proc,  sec.  3440)  is  intended  to  exclude  mere 
formal  and  temporary  change  of  possession,  but  not 
to  require  that  the  vendor  should  never  have  any 
control  over  it.  (Porter  v.  Bucher,  98  Cal.  454, 
33  Pac.  335.) 

§  605.    Change  of  possession  a  question  of  fact. 

The  question'as  to  whether  the  sale  of  personal  prop- 
erty is  accompanied  by  an  immediate  delivery  there- 
of and  followed  by  an  actual  and  continued  change 
of  possession  is  a  question  of  fact  for  the  jury. 
(Meads,  Seaman  &  Co.  v.  Lasar,  92  Cal.  221,  28 
Pac.  935.) 

Every  case  of  this  kind  "has  its  own  particular 
features,  and  must  be  determined  on  the  particular 
facts  which  surround  the  given  transaction  or  trans- 
fer."    (Byrnes  v.  Moore,  93  Cal.  393,  29  Pac.  70.) 


§§  6o6-6o8       SHERIFFS  AND  CONSTABLES.  358 

§606.  Remedy  of  the  creditor.  In  case  of  an 
attempted  transfer  of  personal  property  without  such 
change  of  possession  as  is  required  by  the  statute  any 
creditor  of  the  vendor  "may  cause  the  property  to 
be  seized  in  the  same  manner  as  he  might  have  done 
had  there  been.no  attempted  transfer."  {IVatson 
V.  Rodgers,  53  Cal.  401  ;  Broicn  vr  O'Neal,  95  Cal. 
262,  29  Am.  St.  Rep.  in,  30  Pac.  538.) 

§  607.  Resumption  of  possession.  In  case  of  a 
transfer  of  a  mare  and  a  header  by  father  to  son  the 
court  quoted  from  13  Vermont,  284,  with  approval  as 
follows:  "After  a  sale  of  personal  chattels  has  be- 
come perfected  by  such  a  visible,  notorious  and  con- 
tinued change  of  possession  that  the  creditors  of  the 
vendor  may  be  presumed  to  have  notice  of  it,  the 
vendee  may  lend,  or  let,  or  employ  the  vendor  to  sell, 
or  perform  any  other  service  about  the  thing,  with 
the  same  safety  he  may  a  stranger."  ( Gould  v.  Hunt- 
ley, 73  Cal.  402,  15  Pac.  24.    See,  also,  sec.  603,  ante.) 

§  608.    Subsequent  employment  of  vendor.     The 

employment  of  the  vendor  by  the  vendee  after  the 
sale  is  not  conclusive  evidence  of  fraud,  but  is  an 
element  of  such  proof.  (Godchaux  v.  Mulford,  26 
Cal.  316,  85  Ain.  Dec.  178.  See,  also,  sec.  603,  ante.) 
In  the  case  of  Weil  v.  Paul,  22  Cal.  493,  one 
Strauss,  a  clothing  merchant  whose  goods  were  un- 
der attachment,  sold  them  to  Weil,  who  procured 
the  release  of  the  attachment  and  removed  the  stock 
to  his  (Weil's)  cigar  store.  Within  less  than  two 
weeks  thereafter  Strauss  was  engaged  professedly  as 
employee  of  Weil  in  peddling  out  the  goods  and 
managing  their  sale  at  retail,  in  which  condition  they 


359  FRAUDULENT  TRANSFERS.        §§609-611 

were  again  attached  as  the  property  of  Strauss:  Held, 
that  there  was  no  such  actual  and  continued  change 
of  possession  as  was  required  by  the  fifteenth  section 
of  the  statute  of  frauds,  and  that  the  goods  were  there- 
fore liable  to  the  attachment. 

§  609.    Sale  of  property  in  vendee's  possession. 

In  case  of  a  sale  of  horses  already  in  the  possession 
of  the  vendee,  followed  by  an  immediate  removal 
to  another  ranch  owned  by  him,  the  court  held  that 
''the  delivery  and  possession  were  as  complete  as  the 
nature  of  the  case  permitted."  (Hogan  v.  Cowell, 
73  Cal.  211,  14  Pac.  780.) 

§  610.    Property  in  hands  of  third  party.      If   a 

vendor  of  goods  in  the  care  and  keeping  of  a  third 
person  directs  him  to  deliver  them  to  the  vendee, 
and  the  party  holding  the  goods  consents  to  retain 
the  goods  for  him  and  does  so  retain  them,  it  is  suffi- 
cient delivery  and  change  of  possession  to  satisfy  the 
requirements  of  the  statute.  (JVilliams  v.  Lerch,  56 
Cal.  330.) 

§  6  r  I .    Transfer  of  cumbrous  personal  property. 

What  acts  will  amount  to  an  immediate  and  an  actual 
and  continued  change  of  possession  of  personal  prop- 
erty of  a  cumbrous  and  ponderous  nature  must  de- 
pend in  a  great  degree  upon  the  circumstances  of 
the  particular  case;  but  care  should  be  taken  in  such 
cases  to  keep  in  view  the  object  of  the  statute,  and  to 
exact  nothing  less  than  a  substantial  observance  of 
its  salutary  provisions. 

The  purchaser  or  mortgagee  of  a  kiln  of  bricks, 
while  being  burned,  must  take  that  possession  of  the 


§§6l2-6l4       SHERIFFS  AND  CONSTABLES.  360 

property  which  places  him  in  the  relation  to  the  same 
that  owners  usually  have  to  a  like  kind  of  property, 
in  order  to  secure  it  against  attaching  creditors  of  the 
vendor.  If  the  owner  of  the  kiln,  before  the  burning 
of  the  same  has  been  completed,  makes  a  sale  thereof 
in  good  faith  and  for  a  valid  consideration  to  a  cred- 
itor, and  the  vendor  completes  the  burning  of  the 
kiln,  exercising  the  same  apparent  control  as  before, 
the  sale  is  to  be  deemed  fraudulent  as  to  an  attaching 
creditor  for  want  of  a  change  of  possession.  (Woods 
V.  Bugbey,  29  Cal.  466;  cited  with  approval  in  Hilli- 
ker  V.  Kuhn,  71  Cal.  221,  16  Pac.  707.) 

§612.    Transfer  of  lodging-house  furniture.     A 

lodging-house  keeper  sold  all  the  furniture  for  a  full 
consideration  to  a  person  who  assumed  immediate 
possession;  the  vendor  notified  the  lodgers  at  once, 
but  did  not  leave  the  house  for  five  days,  owing  to 
sickness;  the  transfer  was  held  good  as  against  a  writ 
against  the  vendor,  levied  just  after  she  left  the 
house.     {Ross  v.  Sedgwick,  69  Cal.  247,  10  Pac.  400.) 

§  613.  Transfer  of  undivided  interest.  In  a  case 
involving  the  sale  of  an  undivided  interest  in  a  horse 
it  was  held  that  where  one  co-owner  of  personal 
property,  who  is  in  sole  possession,  sells  his  interest 
to  a  third  party,  there  must  be  an  immediate  delivery; 
but  that  the  other  co-owner  might  sell  his  interest 
without  the  necessity  of  a  change  of  possession. 
{Brown  v.  O'Neal,  95  Cal.  262,  29  Am.  St.  Rep. 
Ill,  3oP«c.  538.) 

§  614.    Personal  property  on  land  conveyed.     In 

Bunting  v.  Saltz,  84  Cal.   168,  24  Pac.   167,  a  case 


361  FRAUDULENT  TRANSFERS.  §614 

involving  the  transfer  of  personal  property  located 
upon  land  the  title  to  which  was  also  attempted  to 
be  transferred,  the  following  instruction  to  the  jury 
was  held  to  be  proper: — 

"The  possession  which  the  law  requires  the  vendee 
to  have,  after  a  transfer  to  him  of  personal  property, 
is  not  sufficient  if  it  amounts  simply  to  constructive 
possession,  or  the  mere  possession  which  the  law  at- 
taches to  the  ownership  of  the  land.  Therefore,  if 
the  personal  property  so  sold  is  located  on  land  to 
which  the  vendee  obtains  a  title  then  or  thereafter, 
the  mere  transfer  of  ownership  to  the  land  is  not 
sufficient  to  constitute  a  change  of  possession  of  the 
personal  property  sold.  The  possession  of  the  per- 
sonal property  must  be  in  some  way  so  changed  as  to 
indicate  by  the  change  that  the  former  owner  no 
longer  owns  it." 

In  the  same  case  the  court  quotes  with  approval 
from  Gaboon  v.  Marshall,  25  Cal.  197,  as  follows: 
"The  possession  by  the  plaintifif  of  the  farm  upon 
which  the  personal  property  was  when  it  was  pur- 
chased by  her,  provided  it  was  an  actual  and  ex- 
clusive possession,  would  be  strong  evidence  of  the 
like  possession  of  such  personal  property.  ...  If  the 
actual  and  exclusive  possession  of  the  farm  would  be 
strong  evidence  of  his  like  possession  of  the  personal 
property,  then  the  possession  of  the  farm  by  the 
vendor,  or  the  concurrent  possession  of  it  by  the  ven- 
dor and  vendee,  would  at  least  tend  very  strongly 
to  show  that  the  plaintiff  had  not  that  actual  pos- 
session of  the  personal  property  necessary  to  place 
it  beyond  the  reach  of  the  creditors  of  the  vendor." 


§§6l5,  6l6       SHERIFFS  AND  CONSTABLES.  362 

§  615.  Cattle,  hogs,  etc.,  on  a  ranch.  In  a  case 
involving  the  transfer  of  an  undivided  interest  in  a 
band  of  cattle  on  an  extensive  range,  certain  acts  of 
the  vendee — riding  over  the  range  and  looking  after 
them — were  held  sufficient  to  justify  the  verdict  of 
a  jury  holding  the  transfer  to  be  valid.  {Hart  v. 
Mead,  84  Cal.  244,  24  Pac.  118.) 

A  sale  of  hogs  allowed  to  remain  upon  a  ranch  in 
charge  of  the  same  persons  as  before  the  sale  does 
not  satisfy  the  California  statute,  although  such  per- 
sons were  requested  to  take  charge  for  the  buyer 
and  consented  to  do  so.  (Mos grove  v.  Harris,  94 
Cal.  162,  29  Pac.  490.) 

§  616.  Purchasers  in  good  faith.  "The  purchas- 
er or  encumbrancer  in  good  faith,"  who  is  protected 
by  the  statute  against  fraudulent  transfers,  must  be 
one  who  not  only  acquired  without  notice  of  the  in- 
firmity of  his  vendor's  title,  but  must  have  parted 
with  value.  {Broivn  v.  Bank  of  Napa,  jj  Cal.  544, 
20  Pac.  71.) 


CHAPTER  XXL 


FIXTURES. 


§  617.  Fixtures,  generally. 

§  618.  California  code  definitions. 

§  619.  General  rule  in  California. 

§  620.  Intention  to  govern,  generally. 

§  621.  Limitation  of  the  rule. 

§  622.  Engines,  boilers,  and  machinery. 

§  623.  Buildings — Question  of  fact. 

§  624.  Building — When  removable. 

§  625.  Omission  in  lease  no  estoppel. 

§  626.  Renewal  of  lease. 

§  627.  Mortgagee  of  lessee. 

§  628.  Fixtures  on  public  lands. 

§  629.  When  fixtures  become  personal  property. 

§  630.  How  to  levy  upon  fixtures  on  realty. 

§  631.  Leading  case  quoted. 

§  617.  Fixtures,  generally.  The  question  often 
arises  as  to  whether  property  is  in  contemplation  of 
law  "personal"  in  nature,  or  whether  it  has  become 
part  of  the  realty  upon  which  it  has  been  placed. 
Upon  the  determination  of  this  question  will  de- 
pend not  only  the  legal  status  of  such  property,  as 
"real"  or  "personal,"  but  its  ownership;  and  both 
these  points  become  material  in  the  consideration  of 
it  as  the  subject  of  legal  process.  The  question  as  to 
when  property  primarily  personal  becomes  a  part  of 
the  realty  and  cannot  be  removed  arises  in  two  widely 
different  classes  of  cases,- — i.  e.  between  vendor  and 
vendee  as  to  the  right  of  the  former  to  retain,  and 
between  owner  and  lessee  as  to  the  right  of  the  latter 
to  remove  such  property  from  the  realty. 


§6l7  SHERIFFS  AND  CONSTABLES.  364 

Upon  few  subjects  have  there  been  more  numerous 
or  more  diverse  decisions  by  the  courts.  Though  no 
great  difficulty  appears  at  first  sight  in  the  definition 
itself,  yet  the  application  to  particular  facts  has 
vexed  the  courts  and  given  rise  to  an  endless  conflict 
of  decisions.  Kent  defines  a  fixture  to  be  "an  article 
of  a  personal  nature  affixed  to  the  freehold."  It  has 
been  held  that  by  the  expression  "annexed  to  the 
freehold"  is  meant  fastened  to  or  connected  with  it; 
mere  juxtaposition,  or  the  laying  of  an  object,  how- 
ever heavy,  on  the  freehold,  does  not  amount  to  an- 
nexation. 

The  author  of  "Smith's  Leading  Cases"  says:  "The 
general  rule  appears  to  be  that,  where  the  instrument 
or  utensil  is  an  accessory  to  anything  of  a  personal 
nature,  as  to  the  carrying  on  a  trade,  it  is  considered  a 
chattel;  but  where  it  is  a  necessary  accessory  to  the 
enjoyment  of  the  inheritance  it  is  to  be  considered  as 
a  part  of  the  inheritance."  Again:  "The  general 
rule  governing  this  subject  is  that  the  tenant,  if  he 
have  annexed  anything  to  the  freehold  during  his 
term,  cannot  again  remove  it  without  the  consent  of 
his  landlord." 

As  between  the  landlord,  who  is  the  owner  of  the 
freehold,  and  the  tenant  the  general  rule  is  that  dur- 
ing his  term  the  tenant  may  remove  fixtures  erected 
or  placed  by  himself,  things  erected  for  the  personal 
convenience  of  the  tenant,  which  are  personal  in  their 
nature,  such  as  a  cider  mill,  to  be  used  during  ten- 
ancy. But  if  he  suffers  them  to  remain  fixed  after 
his  tenancy  expires,  and  he  quits  the  possession  of  the 
land,  he  cannot  enter  to  remove  them. 

The  rule  as  to  fixtures  is  construed  most  strongly 
in  favor  of  the  vendee  in  case  of  a  sale,  and  in  favor 


365  FIXTURES.  §618 

of  the  tenant  in  case  of  a  lease.  "The  general  rule 
of  law  is  that  whatever  is  once  annexed  to  the  free- 
hold becomes  parcel  thereof,  and  passes  with  the 
conveyance  of  the  estate.  Though  the  rule  has  been 
in  modern  times  greatly  relaxed,  as  between  landlord 
and  tenant,  in  relation  to  the  things  affixed  for  the 
purposes  of  trade  and  manufacture,  and  also  in  rela- 
tion to  articles  put  up  for  ornament  or  domestic  use, 
it  remains  in  full  force  as  between  vendor  and  ven- 
dee. As  a  general  thing,  a  tenant  may  remove  what 
he  has  added,  when  he  can  do  so  without  injury  to  the 
estate,  unless  it  has  become,  by  its  manner  of  addi- 
tion, an  integral  part  of  the  original  premises;  but 
as  against  a  vendor,  all  fixtures  pass  to  his  vendee, 
even  though  erected  for  the  purposes  of  trade  and 
manufacture,  unless  specially  reserved  in  the  con- 
veyance."     {Field,  J.,  in  Sands  v.  Pfeiffer,  10  Cal. 

258.) 

§  618.  California  code  definitions.  In  that  por- 
tion of  the  Civil  Code  of  California  relating  to  the 
"Nature  of  Property"  (div.  2,  pt.  1,  tit.  i)  it  is 
provided  that  real  property  consists  not  only  of  land, 
but  that  which  is  either  afiixed  to,  incidental  or  ap- 
purtenant to  land  or  immovable  by  law  (sec.  658), 
and  that  "a  thing  is  deemed  to  be  affixed  to  land 
when  it  is  attached  to  it  by  roots  as  in  the  case  of 
trees,  vines,  or  shrubs;  or  imbedded  in  it,  as  in  the 
case  of  walls;  or  permanently  resting  upon  it,  as  in 
the  case  of  buildings;  or  permanently  attached  to 
what  is  thus  permanent,  as  by  means  of  cement, 
plaster,  nails,  bolts  or  screws."  (Sec.  660.)  Fixtures 
attached  to  mines  are  declared  by  section  661  of  the 
Civil  Code  to  be:  "Sluice-boxes,  flumes,  hose,  pipes, 


§§619-621        SHERIFFS  AND  CONSTABLES.  366 

railway  tracks,  cars,  blacksmith  shops,  mills,  and  all 
other  machinery  or  tools  used  in  working  or  develop- 
ing a  mine." 

§  619.  General  rule  in  California.  Whatever  the 
owner  of  real  property  has  annexed  to  it  for  the  more 
convenient  use  and  improvement  of  the  premises 
passes  by  his  deed,  but  whatever  chattels  a  tenant  has 
annexed  to  or  placed  upon  the  land  for  the  purposes 
of  trade,  manufacture,  agriculture  and  domestic  con- 
venience may  be  removed  by  him,  with  an  exception 
in  case  it  cannot  be  removed  without  practically  de- 
stroying it,  or  where  it  has  become  essential  to  that 
to  which  it  has  been  attached.  {Fratt  v.  JVhittier, 
58  Cal.  130,  131,  41  y4?n.  Rep.  251  ;  Hendy  v.  Dinker- 
hoff,  57  Cal.  6,  40  Am.  Rep.  107.) 

§  620.  Intention  to  govern,  generally.  In  order 
to  determine  whether  a  thing  is  a  fixture  or  not  we 
must  look  at  the  manner  in  which  it  is  annexed,  the 
intention  of  the  person  who  made  the  annexation,  and 
the  purpose  for  which  the  premises  are  used.  {Lav- 
enson  v.  Standard  Soap  Co.,  80  Cal.  250,  13  Am.  St. 
Rep.  147,  22  Pac.  184;  2  Kent,  i^th  ed.  343.) 

§  621.  Limitation  of  the  rule.  While  the  inten- 
tion of  the  annexation  will  govern,  as  a  general  rule, 
this  must  be  limited  where  the  subject  or  mode  of 
annexation  is  such  that  the  attributes  of  personal 
property  cannot  be  predicated  of  the  thing  in  con- 
troversy, and  it  has  become  so  absorbed  or  merged 
into  the  realty  that  its  identity  as  personal  property  is 
lost,  as  when  the  property  could  not  be  removed 
without  practically  destroying  it.  or  where  it  or  part 


367  FIXTURES.  §  622 

of  it  is  essential  to  the  support  of  that  to  which  it  is 
attached.  (Hendy  v.  Dinkerhoff ,  57  Cal.  6,  40  Am. 
Rep.  107.) 

§  622.     Engines,    boilers,    and   machinery.      1  he 

rule  in  reference  to  fixtures  is  applied  with  different 
degrees  of  strictness  as  between  different  parties. 
Engines,  boilers,  machinery,  and  the  like,  which 
could  properly  be  removed  by  the  tenant,  as  between 
him  and  his  landlord,  might,  if  placed  there  by  the 
owner  of  the  land,  be  considerd  a  part  of  the  realty 
and  pass  by  the  conveyance  of  the  same,  as  between 
vendor  and  vendee.  [McGreary  v.  Osborne,  9  CaL 
119;  Fratt  V.  Whittier,  58  Cal.  130,  41  Am.  Rep. 
251.)  An  engine  resting  upon  and  fastened  by  bolts 
and  nuts  to  timbers  which  are  imbedded  in  the  soil 
is  a  part  of  the  realty  so  as  to  pass  by  deed  of  the 
same;  also  a  steam  boiler  secured  by  trestlework  im- 
bedded in  the  soil  and  resting  on  and  surrounded 
by  mason  work  of  stone  and  mortar  built  on  the 
ground.  (McKiernan  v.  Hesse,  51  Cal.  594.)  In 
the  same  case  it  was  held  that  such  property  passed, 
although  placed  by  third  parties  upon  the  land  while 
owned  by  the  United  States. 

"The  engines  and  boilers,  etc.,  used  in  a  flour-mill, 
being  permanently  fastened  to  the  mill,  which  had 
its  foundation  in  the  ground:  Held,  to  be  fixtures 
covered  by  a  mortgage  upon  the  premises,  though 
put  up  after  the  execution  of  the  mortgage,  and  held 
to  pass  to  the  purchaser  of  the  mortgaged  premises 
under  a  decree  of  foreclosure."  (Field,  J.,  in  Sands 
V.  Pfeiffer,  10  Cal.  258.) 

A  tenant  who  puts  up  rr^achinery  for  a  mill  in  a 
house  leased  and  fastens  it  by  bolts,  screws,  etc.,  to 


§  622  SHERIFFS  AND  CONSTABLES.  368 

the  house  has  the  right  to  remove  it;  but,  as  between 
vendor  and  vendee,  such  machinery  would  be  con- 
sidered as  a  part  of  the  realty.  (McGreary  v.  Os- 
borne, 9  Cal.  119.) 

A  steam  engine  and  boiler  fastened  to  a  frame  of 
timber  bedded  in  the  ground  of  a  quartz  ledge  suffi- 
cient to  make  it  level,  with  a  roof  or  shed  to  protect 
the  machinery,  and  used  for  the  purpose  of  working 
the  ledge,  are  so  annexed  to  the  freehold  as  to  be- 
come a  fixture.  Such  machinery,  when  applied  to 
quartz  leads,  is  a  trade  fixture,  removable  by  the 
tenant,  if  otherwise  entitled  to  remove  it.  But  this 
removal  can  only  be  during  the  tenancy  and  during 
such  further  period  of  possession  by  the  tenant  as  he 
holds  the  premises  under  a  right  to  still  consider 
himself  a  tenant,  and  not  during  the  time  he  may  ac- 
tually hold  possession  after  his  lease  has  expired. 
Such  machinery  so  fixed  is  included  by  the  phrase  in 
the  lease,  "improvements  that  may  be  put  up  on  the 
ground  for  working  the  lead."  And  where  the  lease 
stipulated  that  the  improvements  shall  go  to  the 
lessor  on  the  termination  of  the  lease,  if  the  rent  was 
not  paid,  or  if  the  lessee  declined  to  purchase,  as  per 
the  lease  he  might,  the  lessor's  right  to  the  fixtures 
is  not  destroyed  by  the  tenant  contracting  subse- 
quently to  buy  and  taking  a  bond  for  title  on  payment 
of  the  purchase  money,  but  failing  to  fulfill  his  bond. 
(Merritt  v.  Judd,  14  Cal.  60.) 

An  engine,  boiler,  and  machinery  for  a  flouring 
mill,  erected  by  a  lessee  on  the  demised  premises, 
and  securely  attached  thereto  by  bolts  and  screws, 
are  fixtures  as  between  him  and  his  attaching  cred- 
itors, notwithstanding  an  agreement  between  the 
lessor  and  lessee  that  the  latter  should  be  at  liberty 


369  FIXTURES.  §  623 

to  remove  the  machinery  upon  the  expiration  of  the 
lease.  The  severance  and  removal  of  the  fixtures  by 
the  lessee  converts  them  into  personalty.  (McNally 
v.  Connolly,  70  Cal.  3,  1 1  Pac.  320.) 

§  623.  Buildings — Question  of  fact.  A  "build- 
ing," without  other  qualification  or  term  of  descrip- 
tion, is  essentially  personal  property,  and  the  mere 
erection  of  it  upon  land  does  not  necessarily  make  it 
a  fixture.  The  question  is  one  of  fact,  to  be  deter- 
mined upon  the  evidence  in  each  particular  case. 
(Miller  Y.  JVaddingham,  91  Cal.  377,  27  Pac.  750, 
12  L.  R.  A.  680;  Dietz  v.  Mission  Transfer  Co.,  95 
Cal.  92,  30  Pac.  380.)  A  building  set  upon  blocks 
resting  on  the  ground  is  personal  property,  and  re- 
plevin lies  to  recover  it.  (Pennybecker  v.  Mc- 
D  oil  gal,  48  Cal.  160.) 

D  purchased  a  lot  of  land  at  sheriff's  sale  on  exe- 
cution and  entered  into  possession  and  erected  cer- 
tain buildings  thereon.  On  the  twenty-fifth  day  of 
May,  1858,  D  removed  the  buildings.  On  the  same 
day  the  buildings  were  removed  the  defendants  in 
execution  sold  the  premises  to  T,  and  a  day  or  two 
after  T  redeemed  the  lot  from  the  sale  and  then 
brought  suit  against  D  to  recover  the  value  of  the 
buildings:  Held,  that,  as  there  was  no  evidence  that 
the  buildings  were  attached  to  the  soil,  T  cannot  re- 
cover.    (Tyler  v.  Decker,  10  Cal.  436.) 

In  the  absence  of  any  agreement  to  the  contrary, 
a  dwelling-house  and  barn  erected  upon  land  of  his 
landlord  by  a  tenant  become  a  part  of  the  realty. 
A  lessee,  before  the  expiration  of  his  term,  erected  a 
house  and  barn  on  the  leased  premises.  At  the  ex- 
piration of  the  term  a  new  lease  was  taken  of  the 


§§  624,  625       SHERIFFS  AND  CONSTABLES.  370 

premises  without  reserving  the  rights  of  the  lessee  to 
the  buildings  so  erected :  Held,  that  the  buildings 
become  fixtures  annexed  to  the  land,  and  that  the 
lessee  had  no  right  to  remove  them.  (Marks  v. 
Ryan,  63  Cal.  107.) 

§  624.  Building — When  removable.  A  building 
erected  on  leased  ground  for  a  lumber  office  and 
sleeping-place  for  employees  in  a  lumber  yard,  and 
which  rests  upon  short  posts  on  top  of  sills  laid  upon 
the  ground,  constitutes  trade  fixtures,  removable  by 
the  tenant.  {Security  L.  and  T.  Co.  v.  JVillamette 
S.  M.  L.  and  M.  Co.,  99  Cal.  636,  34  Pac.  321.) 

§  625.  Omission  in  lease  no  estoppel.  "A  party 
who  has  placed  improvements  and  fixtures  upon  land 
which  he  has  leased  upon  condition  that  he  should 
have  the  right  to  remove  them,  cannot  be  estopped 
from  taking  them  away,  even  though  he  may  have 
inadvertently  signed  a  lease  with  no  such  conditions 
therein.  In  the  case  of  Isenhoot  v.  Chamberlain, 
plaintifif  and  defendant  entered  into  an  agreement 
for  the  lease  of  land  upon  certain  conditions  named 
in  the  lease,  and  the  further  condition  that,  on  or  be- 
fore the  expiration  of  the  lease,  defendant  should 
have  the  right  to  remove  from  the  land  certain  fix- 
tures and  improvements  previously  placed  there  by 
him.  During  negotiations  for  the  lease,  plaintifif 
at  all  times  admitted  that  defendant  was  the  owner 
of  the  improvements  and  fixtures,  and  entitled  to  re- 
move them,  and  that  the  right  of  removal  should  be 
a  condition  of  the  lease.  The  lease  was  reduced  to 
writing  by  the  procurement  of  the  plaintiff  (lessor), 
and  when  read  to  defendant  (lessee)   he  refused  to 


371 


FIXTURES.  5§  626-628 


sign  the  same  unless  such  condition  was  added  to  the 
lease.  But,  upon  being  informed  by  the  plaintiff 
that  he  (plaintiff)  knew  the  fixtures  and  improve- 
ments belonged  to  defendant,  and  that  the  omission 
of  the  conditions  from  the  lease  would  make  no 
difference,  and  that  defendant  should  have  the  right 
of  removal,  the  defendant  accepted  the  assurance  of 
plaintiff,  and,  relying  thereon,  and  believing  in  the 
good-faith  of  plaintiff,  was  induced  to,  and  did,  exe- 
cute the  lease,  omitting  the  condition:  Held,  plain- 
tiff was  estopped  from  claiming  the  improvements 
and  fixtures,  and  that  defendant,  having  commenced 
to  remove  the  same  previous  to  the  expiration  of  the 
lease,  would  not  be  restrained  by  injunction;  and 
that  defendant  was  entitled  to  have  the  lease  re- 
formed."    {Isenhoot  v.  Chamberlain,  59  Cal.  630.) 

§  626.  Renewal  of  lease.  When  a  lessee  has 
placed  upon  land  improvements  which  would  pass 
as  between  vendor  and  vendee  his  right  to  remove 
them  is  terminated  by  taking  a  new  lease  without 
reserving  his  right  to  the  improvements.  {Merritt 
V.  Judd,  14  Cal.  60;  Mark  v.  Ryan,  63  Cal.  107.) 

§  627.  Mortgagee  of  lessee.  Although  a  lessor 
of  land  cannot  in  a  given  case  claim  the  fixtures,  it 
is  otherwise  of  the  mortgagee  of  the  lessee.  Here 
the  question  is  between  grantor  and  grantee,  and  the 
latter  holds  all  fixtures,  whether  for  trade  or  manu- 
facture, agriculture,  or  habitation.  {Merritt  v. 
Judd,  14  Cal.  60.) 

§  628.  Fixtures  on  public  lands.  A  fixture  is  an 
article  of  a  personal  nature  annexed  to  the  freehold, 


§§629-631       SHERIFFS  AND  CONSTABLES.  372 

and  may  exist  on  public  land.  Although  placed  there 
by  third  parties,  it  passes  to  the  purchaser  who  ac- 
quires title  from  the  government.  (Merritt  v.  Jiidd, 
14  Cal.  60;  McKierjian  v.  Hesse,  51  Cal.  594.) 

§  629.    When  fixtures  become  personal  property. 

By  the  wrongful  severance  from  the  premises  the 
fixtures  become  personal  property,  for  the  recovery 
of  which  an  action  of  replevin  will  lie  by  the  pur- 
chaser after  he  obtains  the  sheriff's  deed.  (Sands 
v.  Pfeiffer,  10  Cal.  259;  McNally  v.  Connolly,  70 
Cal.  6,  1 1  Pac.  320.) 

§  630.     How    to    levy    upon    fixtures    on    realty. 

Where  the  attachment  or  execution  is  to  be  levied 
upon  steam  boilers,  engines,  pumps,  or  other  articles 
that  have  been  attached  to  the  realty  so  as  to  become 
a  part  thereof,  the  levy  should  be  made  as  upon 
realty.  It  is  the  interest  of  the  defendant  in  the  land 
which  is  to  be  attached.  And  where  such  fixtures 
are  from  their  nature  or  exposed  condition  liable  to 
clandestine  removal  or  injury  through  malice  or 
otherwise,  the  officer  will  be  justified  by  consent  of 
the  plaintiff  in  putting  a  keeper  in  charge  thereof  to 
take  care  of  the  property  so  that  he  may  have  it  intact 
at  the  time  of  sale.  If  the  plaintiff  decline  to  incur 
the  expense  of  a  keeper  he  cannot  complain  of  laxity 
on  the  part  of  the  officer  if  the  property  is  lost  or  in- 
jured through  lack  of  care  on  his  part. 

§631.  Leading  case  quoted.  The  leading  case 
in  California  upon  this  subject  is  that  of  Fratt  v. 
Whittier,  cited  (sec.  619,  ante)  ;  and  as  the  court  in 
its  opinion  discussed  the  question  with  great  thor- 


373  FIXTURES.  §  63 1 

oughness,  both  as  affecting  vendor  and  vendee  and 
also  landlord  and  tenant,  a  large  portion  of  the 
decision  is  here  given. 

"This  is  an  action  to  recover  certain  gas  fixtures, 
consisting  of  chandeliers,  globes,  brackets,  burners, 
pendants,  etc.,  a  kitchen  range  with  boiler  attached, 
a  patent  water-filter,  tanks  and  window-screens.  The 
property  was  attached  to  a  building  known  as  the 
Orleans  Hotel,  situate  on  a  lot  of  land  fronting  on 
Second  Street,  in  the  city  of  Sacramento.  As  owner 
of  the  hotel,  the  plaintiff,  on  October  15,  1879,  con- 
tracted in  writing  to  sell  the  same  to  the  defendant, 
by  the  following  description,  viz.:  'Lot  No.  6,  in 
the  square  between  J  and  K  and  Front  and  Second 
streets,  in  the  city  of  Sacramento,  and  the  appurte- 
nances and  improvements  thereunto  belonging.' 

"The  sale  was  made  for  twenty-eight  thousand  dol- 
lars, gold  coin,  payable  after  an  examination  and  ap- 
proval of  the  title,  upon  receiving  from  the  plaintiff 
possession  of  the  property  and  of  a  deed  of  grant  of 
the  same,  on  or  before  the  ist  of  November,  1879, 
reserving  to  the  plaintiff,  among  other  things,  the 
right  within  ten  days  after  delivery  of  possession,  to 
remove  from  the  upper  rooms  of  the  hotel  his  'fur- 
niture, carpets,  and  pictures,  but  none  of  the  perma- 
nent fixtures  or  appurtenances  to  said  property  shall 
be  removed.'  On  the  25th  of  October  the  defendants, 
having  satisfied  themselves  about  the  plaintiff's  title, 
paid  the  full  amount  of  the  purchase  money  and  re- 
ceived from  the  plaintiff  possession  and  a  deed  of 
grant  of  the  property.  The  deed  described  the  prop- 
erty the  same  way  that  it  had  been  described  in  the 
contract  of  sale,  and  it  also  contained  the  recital  that 
the  deed  had  been  made  in  pursuance  of  the  contract 


§631  SHERIFFS  AND  CONSTABLES.  374 

of  sale  and  subject  to  the  terms,  conditions  and  reser- 
vations therein  contained.  Within  ten  days  after  the 
delivery  of  possession,  plaintiff  demanded  of  the  de- 
fendants the  privilege  of  removing  the  articles  in 
controversy  from  the  hotel,  which  being  refused,  this 
action  was  instituted,  and  the  question  arises  whether 
the  articles  are  personalty,  or  fixtures  which  passed 
as  appurtenances  of  the  realty  by  deed  of  grant. 

"If  the  question  arose  out  of  the  deed  alone,  it 
might  not  be  difficult  of  solution,  for  the  weight  of 
authority  seems  to  be  in  favor  of  the  proposition  that 
they  are  to  be  regarded  as  movable  property,  capable 
of  being  severed  from  the  building;  yet  the  author- 
ities upon  the  subject  are  conflicting.  .  .  . 

"What  is  accessory  to  real  estate  is,  according  to 
the  rule  of  common  law,  part  of  it,  and  passes  with 
it  by  alienation.  That  rule  has  been,  in  the  growth 
of  the  law,  greatly  modified  as  between  landlord  and 
tenant,  for  the  encouragement  of  trade,  manufacture, 
agriculture  and  domestic  convenience;  and  courts 
recognize  and  enforce  the  right  of  removal  by  a 
tenant,  of  chattels  annexed  to  the  freehold  for  such 
purposes.  But  the  rule  which  is  applicable  to  per- 
sons in  that  relation  does  not  apply  as  between  heir 
and  executor,  vendor  and  vendee.  As  between  the 
latter,  the  rule  of  the  common  law  is  still  applicable, 
except  so  far  as  it  may  be  modified  by  statutory  regu- 
lations on  the  subject;  so  that  chattels  attached  to  the 
freehold  by  the  owner,  contributing  to  its  value  and 
enjoyment,  pass  by  the  grant  of  the  freehold,  if  the 
grantor  had  power  to  convey.  (Tourtellot  v.  Phelps, 
4  Gray,  378.)  And  after  conveyance,  they  cannot 
be  severed  by  the  vendor  or  any  one  else  than  the 
owner. 


375  FIXTURES.  §631 

"As  between  vendor  and  vendee,   therefore,   the 
rule  for  determining  what  is  a  fixture  is  always  con- 
strued strongly  against  the  seller.     Many  things  pass 
by  a  deed  of  a  house,  being  put  there  by  the  owner 
and  seller,  which  a  tenant  who  had  put  them  there 
might  have  removed,  and  they  will  be  regarded  as 
fixtures,  which  pass  to  the  vendee,  although  annexed 
and  used  for  purposes  of  trade,  manufacture,  or  for 
ornament  or  domestic  use.    Thus,  potash  kettles,  ap- 
pertaining to   a  building  for  manufacturing  ashes 
{Miller  v.  Plumb,  6  Cow.  665,   16  Am.  Dec.  456)  ; 
a  cotton  gin  fixed  in  its  place  (Bratton  v.  Claussen, 
2  Strob.  478)  ;  a  steam  engine  to  drive  a  bark-mill 
{Oves  V.  Oglesby,  7  Watts,  106)  ;  kettles  set  in  brick 
in  dyeing  and  print-works  (Dispatch  Line  v.  Bella- 
ney  Man.  Co.,  12  A^.  H.  207,  37  Ain.  Dec.  203)  ; 
iron  stoves  fixed  to  the  brick-w^ork  of  chimneys  {God- 
dard  v.  Chase,  7  Mass.  432)  ;  wainscot  work,  fixed 
and  dormant  tables,  engines  and  boilers  used  in  a 
flour-mill  attached  to  it  (Sands  v.  Pfeiffer,  10  Cal. 
259)  ;  a  steam  engine  and  boiler  fastened  to  a  frame 
of  timber  and  bedded  in  a  quartz  ledge  and  used  for 
the  purpose  of  working  the  ledge  (Merritt  v.  Judd, 
14  Cal.   50)  ;   a  conduit  or  water  pipe  to  conduct 
water   to   a  house    (Philbrick  v.  Ewing,  97  Mass. 
134)  ;  hay  poles  in  use  on  a  hop  farm   (Bishop  v. 
Bishop,   II   N.   Y.    123,  62  Am.  Dec.   68);   statues 
erected  for  ornament,  though  only  kept  in  place  by 
their  own  weight  (Snedeker  v.  Warring,  12  N.  Y. 
170.)     In  fact,  whatever  the  vendor  has  annexed  to 
a  building  for  the  more  convenient  use  and  improve- 
ment of  the  premises  passes  by  his  deed.     The  true 
rule  deduced  from  all  the  authorities,  says  the  su- 
preme court  of  Virginia,  seems  to  be  this,  that,  when 


§631  SHERIFFS  AND  CONSTABLES.  376 

the  machinery  is  permanent  in  its  character  and  es- 
sential to  the  purpose  for  which  the  building  is  occu- 
pied, it  must  be  regarded  as  realty,  and  passes  with 
the  building;  and  that  whatever  is  essential  for  the 
purpose  for  which  the  building  is  used,  will  be  con- 
sidered as  a  fixture,  although  the  connection  between 
them  may  be  such  that  it  may  be  severed  without 
physical  or  lasting  injury  to  either.  (Green  v.  Phil- 
lips, 26  Graft.  752,  21  Am.  Rep,  353;  Skelton  v. 
Ficklin,  32  Id.  727.) 

"Judged  by  these  rules  it  would  seem  as  if  there 
was  no  room  for  doubt  as  to  the  character  of  the 
articles  in  controversy.  Taking  into  consideration 
their  nature,  the  circumstances  under  which  they 
were  placed  in  the  building,  the  mode  of  their  con- 
nection with  it,  and  the  relation  which  they  bear  to 
its  use  and  enjoyment,  they  must  be  regarded  as  es- 
sential for  the  purposes  for  which  the  building  was 
used.  The  plaintifif  himself  by  his  testimony  shows 
that  the  globes  were  lettered  'Orleans  Hotel,'  and 
that  they,  with  the  chandeliers,  etc.,  were  necessary 
for  furnishing  light  to  the  building;  that  the  range 
rested  on  a  foundation  of  brick,  and  that  it  and  its 
attachments  were  annexed  to  the  building  by  pipes, 
which  connected  them  with  the  tanks  and  filters  on 
the  roof  of  the  building,  and  by  a  waste-pipe  which 
ran  through  the  wall  of  the  building,  and  connected 
with  a  sewer  in  the  alley  outside,  and  the  range  and 
its  attachments  were  necessary  for  cooking;  that  the 
tanks  and  filters  were  attached  to  the  building  by  a 
system  of  pipes  which  connected  them  with  the  main^ 
or  pipes  of  the  City  Water  Company,  and  with 
various  parts  of  the  hotel,  and  were  necessary  to 
supply  the  hotel  with  clear  water;  that  the  mosquito 


377  FIXTURES.  §631 

transoms  and  window-screens  were  fitted  to  the  win- 
dows and  transoms  of  the  hotel — each  window  and 
transom  frame  being  fitted  to  its  particular  window, 
and  shoved  up  and  down  in  it  on  grooves,  and  all  of 
them  were  necessary  to  the  hotel,  as  its  windows,  its 
blinds  and  shutters.  All  of  the  articles  were,  there- 
fore, essential  to  the  use  and  enjoyment  of  the  hotel; 
in  fact,  as  the  plaintiff  testified,  'it  would  not  have 
been  a  hotel  without  them.'  They  were,  therefore, 
fixtures  which  passed  by  the  deed  of  grant  to  the 
defendants,  unless  they  were  specially  reserved  by 
the  deed.  But  the  deed  reserved  none  of  the  articles. 
It  was  made,  according  to  its  recitals,  in  pursuance 
of  the  agreement  of  the  15th  of  October,  and  subject 
to  the  terms,  conditions  and  reservation  therein  con- 
tained and  expressed. 

"As  already  stated,  the  agreement  reserved  only 
the  furniture,  pictures  and  carpets  of  the  upper 
rooms  of  the  building,  and  none  of  the  'permanent 
fixtures  or  appurtenances  to  the  property.'  In  the 
absence  from  the  deed  of  any  special  reservation  of 
the  articles,  it  must  be  presumed  that  the  parties,  by 
their  agreement,  considered  them  as  permanent  fix- 
tures and  appurtenances  of  the  hotel,  which  were  to 
pass  by  the  deed;  it  is  a  well-settled  rule  of  law  that 
parties  themselves  may,  by  express  agreement,  fix 
upon  chattels  annexed  to  realty  whatever  character, 
they  may  have  agreed  upon.  Property  which  the  law 
regards  as  fixtures  may  be  by  them  considered  as 
personalty,  and  that  which  is  considered  in  law  as 
personalty  they  may  regard  as  a  fixture.  Whatever 
may  be  their  agreement,  courts  will  enforce  it. 
{Smith  V.  JVaggoner,  50  Wis.  155,  6  N.  TV.  568; 
Hunt  V.  Bay  State  Iron  Co.,  97  Mass.  279;  Ford  v. 


§631  SHERIFFS  AND  CONSTABLES.  378 

Cobb,  20  iV.  7.  344;  Tifft  V.  Horton,  53  N.  Y.  277. 
13  Am.  Rep.  537;  For^  v.  Williams,  24  N.  F.  359; 
Smith  V.  Benson,  i  i////,  176;  Menagh  v.  Whitwell, 
52  TV.  7.  146,  1 1  y^m.  i?^/).  683.) 

"So  the  plaintiff,  when  he  contracted  to  sell  the 
hotel  property  with  its  appurtenances  and  improve- 
ments, reserving  from  the  sale  only  the  carpets,  fur- 
niture and  pictures  of  the  upper  rooms  of  the  build- 
ing, fixed  upon  all  the  chattels  which  he  had  an- 
nexed to  the  hotel,  and  which  were  necessary  to  its 
use  and  enjoyment,  the  character  of  appurtenances 
and  improvements  of  the  hotel.  None  of  them  by 
any  possibility  of  construction  could  fall  within  the 
reservation  of  'furniture,  carpets,  or  fixtures  in  the 
upper  rooms  of  the  hotel.'  The  plaintiff,  therefore, 
sold  the  articles  in  question  as  fixtures  with  the  hotel, 
and  as  such  they  passed  by  his  subsequent  deed  of 
the  premises  to  the  defendants."  {Fratt  v.  JVhit- 
tier,  58  Cal.  126,  41  Am.  Rep.  251.) 


CHAPTER  XXII. 

SUITS  AGAINST  SHERIFFS. 

§  632.  Limitation  of  actions  against  officers. 

§  633.  Same  limitations  as  to  sureties. 

§  634.  When  statute  commences  to  run. 

§  635.  Illegal  levy. 

§  636.  When  previous  demand  not  necessary. 

§  ^2)7 ■  When  demand  necessary. 

§  638.  Justification  for  seizure. 

§  639.  Duress  of  goods. 

§  640.  Liability  of  officer  and  sureties  for  trespass. 

§641.  Measure  of  damages  for  detaining  personal  property. 

§  642.  Seizure  of  mortgaged  personal  property — Damages. 

§  643.  When  replevin  will  not  lie. 

§  644.  When  judgments  cannot  be  set  off. 

§  645.  Joinder  of  sureties. 

§  646.  Liability  of  sheriff's  sureties. 

§  647.  Sheriff's  notice  to  sureties. 

§  648.  Defect  in  sheriff's  bond — No  defense. 

§  649.  Bond  to  indemnify  sheriff  for  unlawful  act. 

§  650.  Agreement  to  indemnify  sheriff. 

§651.  Liability  of  sureties  on  indemnity  bonds. 

§  652.  Alteration  of  bond. 

§  653.  Conditions  of  indemnity  bond. 

§  654.  Actions  upon  indemnity  bonds. 

§  655.  Plaintiff  bound  by  his  bond. 

§  656.  Judgment  against  sheriff. 

§  657.  An  estoppel  that  protects  the  sheriff. 

§  658.  Indemnity  bond — Jurisdiction  of  courts. 

§  659.  Penalty  for  not  paying  over  moneys. 

§  660.  Remedy  by  motion. 

§  661.  Liability  for  acts  of  deputy. 

§  662.  Officer  not  responsible  through  laches  of  another. 

§  663.  Release  of  sheriff  by  stipulation. 

§  664.  Offices  of  sheriff  and  tax-collector  separate. 

§  665.  Principal  and  deputy — Levy  of  separate  writs. 


§§  632-634       SHERIFFS  AND  CONSTABLES.  380 

§  632.     Limitation    of    actions    against    officers. 

Under  the  practice  in  California  an  action  cannot 
be  commenced  after  two  years  against  a  sheriff,  coro- 
ner, or  constable  upon  a  liability  incurred  by  the 
doing  of  an  act  in  his  official  capacity  and  in  virtue 
of  his  office  or  by  the  omission  of  an  official  duty, 
including  the  non-payment  of  money  collected  upon 
an  execution.  {Code  Civ.  Proc,  sec.  339.)  An  ac- 
tion cannot  be  commenced  after  the  lapse  of  one 
year  against  a  sheriff  or  other  officer  for  the  escape 
of  a  prisoner  arrested  or  imprisoned  on  civil  process. 
(Code  Civ.  Proc.,  sec.  340.)  An  action  cannot  be 
maintained,  unless  commenced  within  six  months, 
against  an  officer  or  officer  de  facto  to  recover  any 
goods,  wares,  merchandise,  or  other  property  seized 
by  any  such  officer  in  his  official  capacity  as  tax- 
collector,  or  to  recover  the  price  or  value  of  any 
goods,  wares,  merchandise,  or  other  personal  prop- 
erty so  seized,  or  for  damages  for  the  seizure,  deten- 
tion, sale  of,  or  injury  to  any  goods,  wares,  merchan- 
dise, or  other  personal  property  seized,  or  for  dam- 
ages done  to  any  person  or  property  in  making  any 
such  seizure.     (Code  Civ.  Proc,  sec.  341.) 

§  633.  Same  limitations  as  to  sureties.  It  is  also 
held  that  it  was  not  the  intention  to  allow  a  longer 
period  for  commencing  an  action  against  a  sheriff 
and  his  sureties  "for  a  liability  incurred  by  doing  an 
act  in  his  official  capacity,"  than  is  allowed  for  com- 
mencing an  action  against  him  alone  for  it.  (Paige 
V.  Carroll,  61  Cai.  211.) 

§  634.    When  statute  commences  to  run.     In  an 

action  brought  against  a  public  officer  for  money  al- 


381  SUITS   AGAINST   SHERIFFS.  §635 

leged  to  have  been  received  by  him  in  his  official 
capacity,  but  for  which  he  failed  to  account,  the 
statute  of  limitations  commences  upon  the  default 
of  the  officer  to  pay  over  the  money  according  to 
law^,  and  not  from  the  time  of  the  demand  made  for 
it.  (People  ex  rel.  Dunn  v.  Melone,  73  Cal.  574,  15 
Pac.  294.) 

The  statute  of  limitations  for  breach  of  an  official 
bond  does  not  commence  running  until  the  expiration 
of  the  official  term.  (People  v.  Van  Ness,  79  Cal. 
84,  12  Am.  St.  Rep.  134,  21  Pac.  554.) 

When  a  sheriff  is  ex  officio  tax-collector  the  stat- 
ute prescribing  limitation  of  actions  against  a  sheriff 
does  not  apply  to  an  action  upon  his  bond  as  tax- 
collector.  (People  V.  Burkhardt,  76  Cal.  606,  18 
Pac.  776.) 

The  supreme  court  of  Colorado  (In  re  People  to 
Use  of  Fritch  v.  Cramer  et  ai,  15  Colo.  155,  25  Pac. 
302)  decides  that  the  liability  of  sheriffs  for  the 
omission  of  any  official  duty,  except  for  escapes,  ac- 
crues vs^hen  the  alleged  consequential  injury  was 
suffered,  and  not  when  the  alleged  non-feasance  oc- 
curred. 

§  635.  Illegal  levy.  If  the  sheriff  levies  upon  the 
property  of  a  person  not  a  party  to  the  execution  he 
is  responsible  in  an  action  at  law.  He  has  become 
a  trespasser  as  against  the  rights  of  the  owner  of  the 
property.  The  statute  allows  him  to  try  the  rights 
of  property  or  the  protection  of  an  indemnity  bond. 
The  procedure  in  such  cases  has  been  pointed  out 
elsewhere  in  this  volume.  If  he  cannot  safely  hold 
the  property,  he  is  entitled  to  indemnity  from  the 
plaintiff.     If  the  sheriff  take  property  not  belonging 


§  636  SHERIFFS  AND  CONSTABLES.  382 

to  the  defendant  in  the  writ,  whether  in  his  possession 
or  not,  the  taking  is  tortious. 

§  636.    When    previous    demand    not    necessary. 

If  the  original  possession  of  property  is  acquired  by 
a  tort  no  demand  previous  to  the  institution  of  a  suit 
is  necessary.  (Sargent  v.  Sturm,  23  Cal.  359,  83 
Am.  Dec.  118,  affirmed  in  Wellman  v.  English,  38 
CaL  584.  See,  also,  Boulware  v.  Craddock,  30  Cal. 
190,  which  overrules  all  cases  subsequent  to  and  in 
conflict  with  Ledley  v.  Hays,  i  Cal.  160,  on  this 
point.)  In  the  case  of  Paige  v.  O'Neal,  12  Cal.  483, 
the  court  say: — 

"It  was  not  essential  to  aver  a  demand  of  the  de- 
fendant of  the  wheat  in  controversy  in  the  complaint, 
or  to  prove  a  demand  on  the  trial.  If  the  property 
in  fact  belonged  to  the  plaintiff — and  it  is  upon  this 
theory  that  the  suit  is  brought,  and  to  this  effect  the 
evidence  tended  when  the  plaintiff  rested — the  seiz- 
ure by  the  defendant  was  tortious;  and  it  is  a  general 
rule  that  where  the  possession  of  property  is  origi- 
nally acquired  by  a  tort,  no  demand  previous  to  the 
institution  of  a  suit  for  its  recovery  is  necessary.  It 
is  only  when  the  original  possession  is  lawful,  and 
the  action  relies  upon  the  unlawful  detention,  that  a 
demand  is  required." 

In  the  case  of  Woodworth  v.  Knowlton,  22  Cal. 
169,  the  court  say:  "The  evidence  and  pleadings 
show  clearly  that  the  plaintiff  was  the  owner  of  the 
property,  and  in  possession  at  the  time  of  the  levy 
of  the  attachment,  and  we  see  nothing  in  the  evi- 
dence showing  a  right  of  possession  in  any  person 
other  than  the  plaintiff  at  the  time  of  the  commence- 
ment of  the  suit.    The  attachment  gave  the  defend- 


383  SUITS  AGAINST  SHERIFFS.        §§  636,  637 

ant  no  authority  to  take  the  property  owned  by  the 
plaintiff,  and  his  seizure  of  the  property  was  there- 
fore wrongful  and  unlawful.  If  any  demand  what- 
ever was  necessary  in  this  case,  which  is  not  very 
clear,  it  was  sufficient  to  make  that  demand  of  the 
party  in  actual  possession,  and  who  was  able  to  com- 
ply with  it,  and  it  would  have  been  but  an  idle 
ceremony  to  make  the  demand  of  Atherton  or  Griffin, 
who  could  not  have  complied  with  it  had  they  been 
willing  to  do  so." 

If  a  sheriff,  by  virtue  of  an  execution,  seizes  the 
property  of  a  person  other  than  the  judgment  debtor, 
whether  by  mistake  or  design,  it  is  not  necessary  for 
the  owner  of  the  property  thus  seized  to  make  a  de- 
mand on  the  sheriff  before  commencing  suit.  (Boul- 
ware  v.  Craddock,  30  Cal.  190.)  The  sheriff,  having 
misapplied  his  process,  stands  in  the  position  of  every 
other  trespasser,  and  is  liable  to  an  action  the  instant 
the  trespass  is  committed.  The  circumstance  that  the 
property  may  have  been  in  the  possession  of  the  exe- 
cution debtor  at  the  date  of  the  seizure  amounts  to 
nothing  except  upon  proof  of  fraud  or  commixture. 
In  the  case  above  cited  the  court  say:  "The  rule  of 
the  common  law  is  correctly  stated  in  Ledley  v.  Hays, 
I  Cal.  160,  and  the  correctness  of  that  decision  is 
impliedly  recognized  in  Daumiel  v.  Gorham,  6  Cal. 
44.  The  statement  of  facts  in  Taylor  v.  Seymour, 
6  Cal.  512,  is  imperfect;  but  if  that  case  is  to  be 
understood  as  laying  down  a  different  rule,  then  we 
prefer  to  follow  Ledley  v.  Hays." 

§  637.  When  demand  necessary.  In  the  case  of 
Kelley  1;.  Scannell,  12  Cal.  73,  the  supreme  court  held 
that  notice  of  claim  and  demand  fur  the  property 


§  637  SHERIFFS  AND  CONSTABLES.  384 

was  necessary  on  the  part  of  the  claimant.  This  was 
an  action  to  recover  the  possession  or  the  value  of  cer- 
tain personal  property,  comprising  the  furniture,  fix- 
tures and  stock  of  the  "Empire  State  Saloon."  The 
property  was,  on  the  19th  of  February,  1857,  seized 
by  defendant  as  sheriff  of  San  Francisco  County,  un- 
der an  attachment  against  one  Wilson.  Prior  to  the 
seizure  of  the  property  by  the  defendant,  the  plain- 
tiff by  an  instrument  in  writing  bargained  and  sold 
the  property  to  Wilson,  and  by  the  terms  of  the  agree- 
ment the  property  was  to  be  delivered  and  paid  for 
on  the  14th  of  February,  1857.  On  that  day  Wilson 
paid  a  part  of  the  purchase  money  and  the  time  for 
the  payment  of  the  balance  was  extended  to  February 
24th.  On  the  14th  of  February  Wilson  and  one  Kirk 
were  in  possession  of  the  property  and  appear  to  have 
been  the  proprietors  of  the  saloon.  This  possession 
continued  up  to  the  time  of  the  seizure  of  the  prop- 
erty by  the  defendant  as  sheriff.  The  plaintiff's  com- 
plaint contains  no  allegation,  nor  was  there  any  proof 
on  his  part  of  notice  of  his  claim  or  demand  of  the 
property  prior  to  the  bringing  of  this  action.  Plain- 
tiff had  judgment  in  the  fourth  district  court,  and  the 
supreme  court  granted  a  new  trial,  holding  that  "de- 
fendant having  seized  the  property  by  virtue  of  his 
office  and  process,  while  in  the  possession  of  the  party 
defendant  mentioned  in  the  writ,  was  entitled  to  no- 
tice and  demand  from  plaintiff  before  he  can  be 
held  liable  to  an  action  for  the  possession  or  value." 
Where,  at  the  time  of  the  levy  of  a  second  exe- 
cution (the  first  having  been  quashed),  the  goods  first 
levied  upon  had  passed  by  sale  to  a  third  party,  and 
were  mixed  with  other  goods  subsequently  pur- 
chased, which  last  goods  were  alleged  to  be  liable  to 


385  SUITS   AGAINST   SHERIFFS.  §  638 

the  execution,  it  was  held  in  the  case  of  Wellington 
V.  Sedgwick,  12  Cal.  470,  that  if  they  were  so  mixed 
or  confounded  with  other  goods  as  that  they  could 
not  be  identified  or  distinguished,  and  Wellington 
failed  to  point  out  to  the  sheriff  or  designate  the 
goods  which  were  not  subject  to  execution,  the  sher- 
iff could  not  be  liable  for  levying  on  the  whole.  But 
the  sheriff  would  be  bound  after  the  levy  on  notice  to 
him  of  the  goods  not  liable,  to  restore  them;  but 
this  notice  must  be  specific,  apprising  him  of  and 
designating  the  particular  goods  improperly  seized, 
and  must  be  given  previously  to  suit  brought. 

§  638.  Justification  for  seizure.  An  officer,  in 
order  to  justify  the  seizure  of  property  in  the  pos- 
session of  a  stranger  to  the  writ  which  he  has  exe- 
cuted, must  plead  specially  such  justification.  He 
cannot  justify  under  a  general  denial  of  the  allega- 
tions of  the  complaint. 

The  general  denial  only  puts  in  issue  the  allega- 
tions of  the  complaint.  New  matter  must  be  spe- 
cially pleaded,  and  new  matter  is  that  which  the 
defendant  must  affirmatively  establish.  (Glazer  v. 
Clift,  10  Cal.  304.) 

Where,  in  an  action  against  the  sheriff  for  taking 
goods  he  justifies  under  an  attachment  against  a  third 
person,  it  is  not  necessary  that  his  answer  should  set 
forth  minutely  every  fact  relating  to  the  attachment 
suit.  An  answer  which  stated  the  time  of  commence- 
ment of  the  action,  the  names  of  parties,  the  court, 
and  that  the  goods  were  taken  by  virtue  of  a  writ  of 
attachment  issued  therein,  held  to  be  sufficient. 
{Toardy  v.  Ellis,  22  Cal.  651.) 


§  638  SHERIFFS  AND  CONSTABLES.  386 

When  property  is  taken  from  the  possession  of  the 
defendant  by  the  officer  levying  thereon,  it  is  suffi- 
cient to  introduce  (in  suit  against  the  sheriff)  in  evi- 
dence the  attachment  or  execution  under  which  the 
levy  is  made;  but  when  found  in  the  possession  of  a 
stranger  claiming  title  to  the  property  so  seized,  it 
is  likewise  necessary  to  show  a  judgment  or  prove  the 
debt  for  which  judgment  is  demanded  in  the  attach- 
ment suit.  (Sexey  v.  Adkinson,  34  Cal.  346,  91  Am. 
Dec.  698.) 

If  an  officer  seizes  the  property  of  the  debtor,  and 
the  writ  be  regular  on  its  face,  it  is  a  sufficient  justi- 
fication to  him;  for  the  defendant  may,  if  the  attach- 
ment has  been  improvidently  issued,  move  to  have 
it  quashed  or  bring  a  suit  upon  the  undertaking;  but 
a  third  party,  a  stranger  to  the  record,  could  not 
interfere,  and  therefore  it  would  seem  but  justice, 
before  any  right  could  be  established  against  him  by 
reason  of  a  proceding  to  which  he  was  not  a  party, 
that  its  regularity  should  be  shown.  An  officer  who 
seizes  property  in  the  hands  of  the  debtor  may  jus- 
tify under  the  execution  or  process;  but  when  he 
takes  property  from  a  third  person,  who  claims  to  be 
the  owner  thereof,  he  must  show  the  judgment  and 
execution;  if  an  attachment,  the  writ  of  attachment 
and  the  proceedings  on  which  it  was  based. 

In  the  case  of  Norcross  v.  Nunan,  Sheriff,  61  Cal. 
640,  which  was  an  action  for  the  recovery  of  per- 
sonal property  or  its  value,  and  for  damages  for  its 
detention,  the  court  below  refused  to  admit  the  writ 
of  attachment  in  evidence.  On  appeal  Mr.  Justice 
Myrick  delivered  the  following  opinion  of  the 
court  :^ 


387  SUITS  AGAINST  SHERIFFS.  §  638 

"This  was  an  action  for  the  recovery  of  personal 
property  or  its  value,  and  for  damages  for  its  deten- 
tion. But  the  plaintiff  did  not  claim  the  delivery 
of  the  property  to  him  before  judgment.  The  de- 
fendant, sheriff,  justified  under  a  writ  of  attachment 
and  an  execution. 

"i.  Conceding  that  the  court  below  was  correct 
in  refusing  to  admit  the  writ  of  attachment  in  evi- 
dence because  of  the  defect  of  the  affidavit,  in  stat- 
ing that  the  amount  claimed  was  due  upon  either  an 
express  or  implied  contract,  yet  the  defendant  was 
entitled  to  have  the  execution  in  evidence  upon  which 
to  base  the  defense  that  the  transfer  of  the  property 
from  Gordon  &  Cory  to  plaintiff  was  fraudulent  and 
void  as  to  creditors.  We  think  the  evidence  of  the 
plaintiff  clearly  shows  that  the  transfer  was  void  as 
to  creditors.  (Civ.  Code,  sec.  3440.)  The  sheriff 
did  not  take  the  property  from  the  possession  of 
plaintiff;  and  even  if  there  were  irregularities  in  the 
proceedings  for  the  judgment,  such  irregularities 
would  not  prevent  the  officer  from  justifying  under 
an  execution  valid  on  its  face.  There  is  nothing  on 
the  face  of  the  execution  to  show  its  invalidity.  The 
rule  is  fully  stated  in  Freeman  on  Executions,  sec- 
tion   lOI. 

"  'The  sheriff  may  limit  his  inquiries  to  an  inspec- 
tion of  the  writ.  If  the  writ  is  issued  by  the  proper 
officer,  in  due  form,  and  appears  to  proceed  from  a 
court  competent  to  exercise  jurisdiction  over  the  sub- 
ject-matter of  the  suit,  to  grant  the  relief  granted 
and  enforce  it  by  the  writ  issued,  and  there  is  noth- 
ing on  the  face  of  the  writ  showing  a  want  of  juris- 
diction over  the  person  of  the  defendant,  or  showing 
the  writ  to  be  clearly  illegal  from  some  other  cause, 


§§  639,  640       SHERIFFS  AND  CONSTABLES.  388 

the  officer  may  safely  proceed.  That  from  some 
cause  not  shown  in  the  writ,  the  judgment  or  writ  was 
irregular  or  void,  will  be  of  no  consequence  to  him. 
He  can  justify  upon  producing  the  writ.  It  is  there- 
fore immaterial  to  him  that  the  judgment  does  not 
correspond  to  the  writ  or  that  there  ever  was  any 
such  judgment  in  existence.' 

"Judgment  and  order  reversed  and  cause  re- 
manded for  a  new  trial." 

A  sheriff  makes  out  a  prima  facie  case  of  justifi- 
cation of  the  seizure  of  property  under  a  writ  of 
attachment  by  the  production  of  the  writ  and  affi- 
davit on  which  it  was  issued,  notwithstanding  the 
affidavit  was  originally  insufficient,  and  was  amended 
subsequent  to  the  seizure,  if  the  property  was  in 
possession  of  the  defendant  and  attached  as  his  prop- 
erty.    (Babe  v.  Coyne,  53  Cal.  261.) 

§  639.  Duress  of  goods.  The  issuance  of  an  at- 
tachment and  levy  of  the  same  on  goods,  if  there  be 
a  legal  cause  of  action  existing,  is  not  such  a  duress 
of  goods  as  to  give  a  cause  of  action  for  damages  in 
favor  of  the  one  whose  goods  are  seized.  [Kohler 
V.  Wells,  Fargo  &  Co.,  26  Cal.  606.)  Proof  of  in- 
jury to  plaintiff's  business  as  a  criterion  of  damages 
is  inadmissible. 

§  640.  Liability  of  oflicer  and  sureties  for  tres- 
pass. Where  a  sheriff  or  constable  seizes  the  prop- 
erty of  one  man  under  an  execution  against  another 
he  is  a  trespasser  and  liable  on  his  official  bond. 
(Fan  Pelt  v.  Littler,  14  Cal.  194.)  An  action  on  the 
official  bond  of  an  officer  lies  primarily  upon  the 
breach  of  the  condition  of  the  bond,  whether  the 


389  SUITS  AGAINST  SHERIFFS.  §  640 

injury  for  which  suit  is  brought  be  a  trespass  or  not 
— the  result  of  the  non-feasance  or  misfeasance  of 
the  officer.  In  the  decision  here  cited  the  suit  was 
brought  upon  the  official  bond  of  a  constable  against 
the  officer  and  his  sureties  to  recover  damages  for  an 
illegal  seizure  of  the  property  of  the  plaintiff  under 
an  execution  against  other  parties.  It  was  contended 
that  the  suit  was  improperly  brought  upon  the  offi- 
cial bond  of  the  constable;  that  the  sureties  are  not 
liable  on  the  bond  in  the  first  instance,  and  that  the 
only  remedy  primarily  is  an  action  of  trespass  against 
the  officer  alone.  The  condition  of  the  bond  being 
that  the  officer  shall  well  and  faithfully  discharge 
the  duties  of  his  office,  it  was  held  that  there  could 
be  nothing  in  that  point.  The  bond  is  a  contract  by 
which  the  officer  and  his  sureties  in  effect  covenant 
and  agree  not  only  that  the  officer  will  faithfully 
perform  the  duties  enjoined  by  law,  but  that  he  will 
not  by  virtue  or  under  color  of  his  office  commit  any 
illegal  or  improper  act.  It  is  no  answer  to  an  action 
upon  the  official  bond  of  an  officer  that  the  party 
complaining  has  not  chosen  to  pursue  some  other 
equally  available  and  proper  remedy. 

The  law  is  well  settled  that  a  sheriff  is  answerable 
for  the  wrongful  acts  of  his  deputy,  committed  under 
color  of  his  office,  and  in  the  pretended  discharge  of 
his  duty.  If  the  deputy  levy  an  execution  against  A 
upon  the  property  of  B,  the  sheriff  is  liable;  and  he 
is  liable  not  only  in  a  private  and  individual  capac- 
ity, but  in  his  public  and  official  character,  and  upon 
his  official  bond.  This  liability  rests  alone  upon  the 
ground  of  the  official  relation  existing  between  the 
parties,  and  can  be  enforced  only  as  to  such  acts  of 
the  deputy  as  are  connected  with  the  performance 


§  640  SHERIFFS  AND  CONSTABLES.  390 

of  his  official  duty.  He  is  no  more  answerable  for 
a  naked  trespass  committed  by  the  deputy  than  any 
other  person,  but  the  wrongful  acts  of  the  deputy, 
done  under  color  of  process,  are  deemed  official,  and 
for  such  acts  he  is  liable.  This  being  admitted,  and 
its  correctness  seems  never  to  have  been  questioned, 
it  is  difficult  to  perceive  any  satisfactory  reason  why 
similar  acts  of  the  sheriff  himself  should  not  be  held 
of  the  same  character,  in  order  to  charge  his  sureties. 
Our  statute  makes  no  distinction  between  the  liabil- 
ity of  a  sheriff  and  a  constable.  The  legislature  in- 
tended that  the  offi.cer  and  his  sureties  should  be  re- 
sponsible for  every  abuse  of  his  official  powers,  and 
there  could  not  well  be  a  more  flagrant  abuse  of  such 
powers  than  the  seizing  and  selling  of  the  property 
of  one  person  under  and  by  virtue  of  an  execution 
against  another.  He  does  not  act  in  such  a  case  in 
a  private  and  individual  capacity,  but  as  an  officer, 
clothed  with  official  authority,  and  protected  by  the 
judgment  of  a  court  and  the  process  w^iich  he  in- 
tends to  execute.  No  resistance  can  lawfully  be 
made  by  any  person  whose  property  is  thus  taken. 
The  property  itself  may  be  detained  w^hether  legally 
taken  or  not,  and  a  summary  mode  is  provided  for 
the  protection  of  the  officer,  to  determine  disputes  in 
regard  to  the  title.  "To  hold  that  such  an  act  is  not 
official,"  say  the  court  in  the  case  above  cited,  "at 
least  so  far  as  to  charge  the  sureties,  it  appears  to  us, 
would  be  in  contravention  of  the  spirit  and  intention 
of  the  statute,  and  would  certainly  operate  most  un- 
justly upon  persons  whose  property  may  be  taken 
by  an  officer  who  is  insolvent  and  unable  to  respond 
in  damages  for  its  value." 


391  SUITS  AGAINST  SHERIFFS.  §  641 

In  a  suit  brought  on  the  official  bond  of  defendant, 
Webster,  who  was  sheriff  of  San  Joaquin  County, 
against  Webster  and  his  sureties  to  recover  damages 
for  the  levy  by  Webster  on  property  of  one  Pico, 
which  levy  was  made  under  color  of  process,  it  was 
held  (Pico  v.  Webster,  14  Cal.  203,  73  Am.  Dec. 
647)  that,  where  the  surety  undertakes  that  his  prin 
cipal  shall  pay  any  judgment  to  be  rendered,  etc., 
the  judgment  against  the  principal  is  conclusive 
against  the  surety. 

But  in  the  case  of  official  bonds  the  sureties  under- 
take in  general  terms  that  the  principal  will  per- 
form his  official  duties;  and  a  judgment  against  the 
officer  in  a  suit  to  which  they  were  not  parties,  is  not 
evidence  against  them. 

§  641.  Measure  of  damages  for  detaining  per- 
sonal property.  In  actions  for  taking  and  detaining 
personal  property,  no  circumstances  of  aggravation 
being  shown,  the  measure  of  damages  is  the  value  of 
the  property  with  interest.  If  circumstances  of  ag- 
gravation be  shown  in  order  to  increase  the  dam- 
ages, then  defendant  may  show  all  circumstances  con- 
nected with  his  acts  and  explanatory  of  his  motives 
and  intentions.  In  such  actions  the  rule  of  damages 
depends  on  the  presence  or  absence  of  circumstances 
of  aggravation  in  the  trespass  as  fraud,  malice,  or 
oppression.  In  the  absence  of  such  circumstances  the 
rule  is  compensation  merely,  and  this  refers  solely 
to  the  injury  done  to  the  property,  and  not  to  col- 
lateral or  consequential  damages  resulting  to  the 
owner.  And  the  measure  of  relief  is  matter  of  law. 
But  where  the  trespass  is  committed  from  wanton  or 
malicious   motives,   or   a   reckless   disregard   of   the 


§  641  SHERIFFS  AND  CONSTABLES.  392 

rights  of  others,  or  under  circumstances  of  great 
hardship  and  oppression,  the  rule  of  mere  compensa- 
tion is  not  enforced,  and  the  measure  and  amount  of 
damages  are  matters  for  the  jury  alone,  and  they 
may  award  punitive  or  exemplary  damages. 

The  rule  of  compensation  merely,  as  distinguished 
from  the  rule  of  exemplary  damages,  applies,  even 
though  the  wTit  under  which  the  officer  committed 
the  trespass  was  void,  there  being  no  circumstances 
of  aggravation.     {Dorsey  v.  Manlove,  14  Cal.  553.) 

In  an  action  against  a  sheriff  for  wrongfully  seiz- 
ing and  selling  property  under  an  execution,  and 
where  there  was  no  wantonness  or  oppression  on  the 
part  of  such  officer  in  the  seizure,  the  measure  of 
damages  is  the  value  of  the  property  at  the  time  it 
was  seized,  and  legal  interest  on  such  amount  from 
the  time  of  seizure  up  to  the  time  of  the  rendition  of 
the  verdict.     {Phelps  v.  Owens,  11  Cal.  25.) 

The  rule  giving  vindictive  or  exemplary  damages 
in  cases  of  malicious  trespass,  applies  as  well  to  offi- 
cers of  the  law  acting  under  color  of  process  as  to 
private  persons.  In  a  suit  against  a  sheriff  and  the 
plaintiff  in  a  judgment  for  a  wrongful  seizure  of 
property  on  an  execution  upon  such  judgment,  the 
sheriff  who  acted  without  improper  motives  cannot 
be  made  liable  in  vindictive  or  exemplary  damages 
on  account  of  the  malicious  motives  of  the  plaintiff 
in  the  writ.  The  motives  of  plaintiff  cannot  be  given 
in  evidence  in  aggravation  of  damages  against  the 
sheriff.     {Nightingale  v.  Scannell,  18  Cal.  315-) 

In  the  case  of  Selden  v.  Cashman,  20  Cal.  67,  81 
Am.  Dec.  93,  action  for  damages  for  trespass  for  the 
seizure  of  a  stock  of  goods  under  an  execution  issued 
upon  a  void  judgment,  the  court  held  that  the  fact 


393  SUITS  AGAINST  SHERIFFS.  §  64I 

of  the  invalidity  of  the  judgment  was  not  sufficient 
to  warrant  the  conclusion  that  the  seizure  was  mali- 
cious. There  was  nothing  extraordinary  attending 
the  seizure,  and  the  course  ordinarily  adopted  in 
such  cases  seems  to  have  been  substantially  pursued. 
The  seizure  was  undoubtedly  a  hardship  upon  the 
plaintiff,  but  there  was  no  evidence  of  any  wrongful 
design  or  willful  misconduct  tending  to  aggravate 
the  ofifense.  The  case  presented  was  that  of  a  simple 
trespass,  and  the  court  below  acted  properly  in  re- 
fusing to  allow  exemplary  damages. 

To  maintain  trover  or  trespass  de  bonis  asportatis 
evidence  of  an  actual  forcible  dispossession  of  the 
plaintiff  is  not  necessary.  Any  unlawful  interference 
with  the  property  or  exercise  of  dominion  over  it, 
by  which  the  owner  is  damnified,  is  sufficient  to  main- 
tain either  action.  It  was  held,  accordingly,  in  Rider 
V.  Edgar,  54  Cal.  127,  in  an  action  by  a  mortgagee  of 
personal  property  against  a  sheriff  for  taking  the 
same  under  attachments  against  the  mortgagor,  that 
a  levy  upon  a  part  of  the  property  in  the  possession 
of  the  mortgagor,  and  the  appointment  of  a  keeper, 
was  a  taking,  although  the  property  was  not  moved 
or  otherwise  disturbed,  and  though  it  was  released 
before  any  demand  from  the  plaintiff. 

In  an  action  for  trespass  {Pacheco  v.  Hunsacker, 
14  Cal.  120),  brought  by  one  Pacheco  against  Hun- 
sacker as  sheriff,  for  seizing  and  taking  away  certain 
grain,  the  property  of  plaintiff,  the  defendant  ad- 
mitted the  seizure,  averring  that  it  was  done  by 
virtue  of  a  writ  of  attachment  issued  at  the  suit  of 
Dutil  V.  Andeque;  that  he  sold  the  undivided  two- 
thirds  interest  in  the  wheat,  as  perishable  property, 
for  four  hundred  and  ninety-five  dollars;  that  at  the 


§641  SHERIFFS  AND  CONSTABLES.  394 

time  of  the  seizure  Andeque  had  a  leviable  interest 
in  the  wheat,  and  that  Dutil  was  a  bona  fide  creditor. 
The  wheat  was  in  five  stacks  and  was  left  by  the 
sherifif  in  charge  of  a  keeper  until  the  day  of  sale. 
At  the  sale  the  sherifif  announced  that  he  only  sold 
the  undivided  two-thirds  interest  of  Andeque.  Pa- 
checo  was  present  and  notified  the  sherifif  that  if  he 
sold  he,  Pacheco,  would  abandon  his  one  third  and 
claim  of  the  sherifif  the  whole  value.  The  purchaser 
at  the  sale  afterwards  went  onto  the  land,  threshed 
out  the  whole  of  the  five  stacks,  and  kept  the  wheat. 
The  sherifif  retained  the  four  hundred  and  ninety- 
five  dollars  to  abide  the  event  of  this  suit.  A  few 
days  before  the  seizure  by  the  sherifif  Andeque  sold  to 
Pacheco  these  five  stacks,  pointing  them  out  specif- 
ically, executed  a  bill  of  sale,  left  the  ranch,  and  did 
not  return. 

The  court  below,  among  other  things,  instructed 
the  jury  that  the  plaintifif  was  entitled  to  recover,  if 
at  all,  the  value  of  all  the  grain  taken.  The  jury 
found  for  plaintifif  fourteen  hundred  and  fifty-seven 
dollars.  Judgment  was  rendered  accordingly,  and 
defendant  appealed.  The  supreme  court  held  that 
the  plaintifif  was  entitled  to  the  value  of  all  the  grain 
taken. 

In  an  action  to  recover  the  possession  of  personal 
property,  with  damages  for  its  detention,  the  judg- 
ment may  be  for  more  than  the  value  as  alleged  in 
the  complaint,  if  it  be  within  the  ad  damnum  of  the 
writ.  The  value  of  the  property  is  only  one  predi- 
cate of  the  recovery.  (Cog/iiil  v.  Boring,  15  Cal. 
213.)  The  rule  is,  where  the  property  converted  has 
a  fixed  value,  the  measure  of  damages  is  that  value, 
with    legal    interest    from    the    time   of   conversion. 


395  SUITS  AGAINST  SHERIFFS.        §§  642,  643 

When  the  value  is  fluctuating  the  plaintiff  may  re- 
cover the  highest  market  value  at  the  time  of  the 
conversion,  or  at  any  time  afterwards.  (Hamer  v. 
Hathaway,  33  Cal.  117.) 

An  officer  holding  goods  under  a  writ  of  attach- 
ment is  liable  on  his  bond  for  any  damage  thereto 
occurring  through  his  carelessness  or  negligence. 
{Wilkowski  V.  Hern,  82  Cal.  604,  23  Pac.  132.) 

In  an  action  to  recover  damages  from  a  sheriff  for 
a  wrongful  seizure  of  plaintiff's  goods  under  writs 
of  attachment  issued  in  suits  against  his  son,  where, 
on  motion  of  the  plaintiff  made  in  such  actions,  the 
attached  property  has  been  restored  by  order  of  the 
court  to  him,  exemplary  damages,  attorney's  fees, 
and  other  expenses  attending  the  hearing  of  such 
motion  should  not  be  awarded  in  the  absence  of  any 
showing  of  fraud,  malice,  or  oppression.  (Adams  v. 
Gillam,  53  Kan.  131,  36  Pac.  51.) 

§  642.    Seizure  of  mortgaged  personal  property 

— Damages.  Under  a  statute  requiring  the  officer  to 
pay  or  tender  the  amount  of  the  mortgaged  debt  be- 
fore he  can  levy  upon  mortgaged  personal  property, 
if  the  officer  sells  and  converts  such  property  without 
such  tender,  the  mortgagee  is  entitled  to  recover  of 
the  officer  the  amount  of  the  mortgage  debt  with  in- 
terest.    (Sherman  v.  Finch,  71  Cal.  68,  11  Pac.  847.) 

§  643.  When  replevin  will  not  lie.  When  an  of- 
ficer has  sold  personal  property  under  execution,  and 
parted  with  possession  of  it,  the  action  of  claim  and 
delivery  will  not  lie  against  him.  (Ricwtto  v.  Clem- 
ent, 94  Cal.  105,  29  Pac.  414.) 


§§  644-646       SHERIFFS  AND  CONSTABLES.  396 

§  644.    When  judgments  cannot  be  set  off.      A 

sheriff  will  not  be  allowed  to  take  advantage  of  his 
own  wrong,  and  by  an  illegal  act  defeat  the  purpose 
of  the  statute.  In  the  case  of  Beckman  v.  Manlove, 
18  Cal.  389,  plaintiff  recovered  judgment  against  de- 
fendant for  seizing,  as  sheriff,  under  execution,  cer- 
tain exempt  property.  Defendant  then  procured  an 
assignment  to  him  of  the  judgment  on  which  the 
execution  issued,  and  moved  the  court  to  set  off  this 
latter  judgment  against  the  former:  Held,  that  the 
motion  was  properly  denied;  that,  defendant  being 
sued  as  a  wrongdoer,  the  judgment  of  plaintiff  for 
the  value  of  the  property  must,  as  between  plaintiff 
and  defendant,  be  regarded  as  standing  in  place  of 
the  property;  and  that  if  defendant  were  allowed  in 
this  way  to  take  advantage  of  his  own  wrong,  he 
would  practically  defeat  the  purpose  of  the  exemp- 
tion law. 

§  645.  Joinder  of  sureties.  The  sureties  on  the 
bond  of  a  sheriff  may  properly  be  joined  as  parties 
defendant  in  an  action  against  him  to  recover  per- 
sonal property  wrongfully  taken  on  execution,  and 
for  damages  for  its  detention.  {Sam  Yuen  v.  Mc- 
Mann,  99  Cal.  497,  34  Pac.  80.) 

§  646.  Liability  of  sheriff's  sureties.  Sureties  on 
the  sheriff's  official  bond  in  this  state  are  entitled  to 
stand  upon  the  precise  terms  of  their  contract,  by 
which  they  stipulate  for  his  official,  not  his  personal, 
dealings.  In  the  case  of  Schloss  v.  White,  Sheriff, 
16  Cal.  68,  suit  brought  on  a  sheriff's  bond  against 
the  officer  and  his  sureties,  the  plaintiff  sued  out  at- 
tachment against  one  Kalkmann,  and  had  it  levied 


397  SUITS  AGAINST  SHERIFFS.  §  646 

on  some  goods.  Other  creditors  issued  similar  proc- 
ess, also  levied  on  the  same  goods;  and  afterwards 
the  plaintiff  dismissed  his  proceeding,  and  claimed 
that  the  goods  levied  on,  or  a  part  of  them,  were 
his  own  property,  they  having  been  procured  by 
Kalkmann  by  false  pretenses.  The  plaintiff  sued  the 
sheriff  in  replevin.  He  did  not  take  the  goods  out 
of  the  sheriff's  possession,  but  came  to  an  arrange- 
ment with  the  sheriff  whereby  the  sheriff  agreed  to 
sell  the  goods  and  keep  the  proceeds  to  answer  the 
judgment  if  the  plaintiff  obtained  one  in  his  replevin 
suit.  The  sheriff  sold  the  goods  and  paid  the  money 
into  court,  saying  nothing  about  this  arrangement; 
and  the  money  was  paid,  under  the  order  of  the  court, 
on  the  claim  of  the  other  creditors.  The  court  held 
as  follows:  "The  sureties  of  the  sheriff  had  nothing 
to  do  with  and  gave  no  sanction  to  this  arrangement. 
The  question  is.  Are  they  bound  to  the  plaintiff  for 
the  goods  or  the  money  received  from  the  sale — the 
plaintiff  having  obtained  judgment  in  the  replevin 
suit?  We  think  they  are  not.  It  was  no  part  of  the 
sheriff's  duty  to  make  this  agreement  with  the  plain- 
tiff to  sell  the  goods  and  to  hold  the  proceeds  for  the 
plaintiff  in  a  certain  event.  He  had  no  legal  au- 
thority, as  sheriff,  to  sell  these  goods  and  to  hold  the 
money  on  bailment  for  the  plaintiff.  If  the  plaintiff 
trusted  him  with  the  custody  of  the  goods,  and  gave 
him  authority  to  sell  them,  he  became,  so  far,  the 
agent  of  the  plaintiff,  and  the  plaintiff  must  look  to 
him  merely  as  his  agent;  he  cannot  hold  the  sureties 
bound  for  executory  contracts  of  this  sort,  entered 
into  without  their  consent.  If  so,  there  would  be 
scarcely  a  limit  to  their  responsibility;  for  contracts 
of  this  sort  might  run  for  years,  and  represent  every 


§  647  SHERIFFS  AND  CONSTABLES.  398 

variety  of  complication.  If  the  sheriff  had  retained 
the  goods,  he  might  have  obtained  a  bond  of  indem- 
nity from  the  other  creditors;  or  if  the  plaintiff  had 
given  bond,  he  might  have  relieved  the  sheriff'  from 
the  custody  of  the  goods.  But  here  the  sheriff  as- 
sumes by  this  agency  a  responsibility  for  himself  and 
his  sureties,  greater  in  degree  and  different  in  kind 
from  that  imposed  by  law,  and  it  would  be  unjust 
and  impolitic  to  encourage  such  dealings  by  holding 
sureties  responsible  for  them." 

Where  the  obligors  in  a  sheriff's  bond  bind  them- 
selves, jointly  and  severally,  in  specific  sums  desig- 
nated they  may  all  be  joined  in  the  same  action,  but 
separate  judgments  are  required.  {People  v.  Ed- 
wards, 9  Cal.  286.) 

The  sureties  of  a  sheriff  are  not  liable  for  any  statu- 
tory penalty  imposed  upon  him  for  neglect  of  official 
duty.  The  sureties  are  liable  only  for  actual  dam- 
ages sustained.     {Glascock  v.  Ashman,  52  Cal.  493.) 

§  647.    Sheriff's   notice    to    sureties.     It  is  of  the 

greatest  importance  to  an  officer  that  the  sureties  on 
an  indemnity  bond  given  to  him  be  promptly  notified 
of  any  suit  brought  against  him  by  a  party  claiming 
property  seized  under  process.  Section  1055  of  the 
Code  of  Civil  Procedure  of  California  provides  that 
"if  an  action  be  brought  against  a  sheriff  for  an  act 
done  by  virtue  of  his  office,  and  he  give  seasonable 
notice  thereof  to  the  sureties  on  any  bond  of  indem- 
nity received  by  him,  and  permits  them  to  conduct 
the  defense  of  such  action,  the  judgment  recovered 
therein  shall  be  conclusive  evidence  of  his  right  to 
recover  against  such  sureties;  and  the  court  may,  on 
motion,  upon  notice  of  five  days,  order  judgment  to 


399  SUITS  AGAINST  SHERIFFS.        §§  648,  649 

be  entered  up  against  them  for  the  amount  so  re- 
covered, including  costs."  {Code  Civ.  Proc,  sec. 
1055;  Stats.  1907,  p.  309.) 

/  If  a  sheriflf  is  indemnified  for  an  act  done  by  virtue 
of  his  office,  and  an  action  is  brought  against  him  to 
recover  damages  for  the  act,  and  judgment  is  recov- 
ered against  him,  the  sheriff  cannot  afterwards  have 
judgment  entered  on  motion  in  that  action  against 
the  sureties  on  the  indemnifying  bond  unless  he  give 
the  sureties  written  notice  of  the  action  brought 
against  him.  He  cannot  avail  himself  of  this  remedy, 
but  is  left  to  his  action  upon  the  indemnity  bond. 
{Dennis  v.  Packard,  28  Cal.  loi.) 

§  648.     Defect    in    sheriff's    bond — No    defense. 

The  defect  in  the  approval  of  a  sherifif's  bond  cannot 
be  set  up  as  a  defense  in  an  action  on  said  bond  against 
the  sureties.  The  object  of  the  law  in  requiring  the 
approval  is  to  insure  greater  security  to  the  public, 
and  it  does  not  lie  in  the  obligors  to  object  that  their 
bond  was  accepted  without  proper  examination  into 
its  sufficiency  by  the  officers  of  the  law. 

§  649.    Bond   to   indemnify   sheriff   for   unlawful 

act.  A  bond  given  to  a  sherifif  to  indemnify  him  for 
any  loss  or  damage  he  may  sustain  by  selling  prop- 
erty levied  on  by  him  by  virtue  of  an  execution  in 
violation  of  an  order  enjoining  its  sale  is  void,  be- 
cause an  unlawful  contract.  {Bujfendeau  v.  Brooks, 
28  Cal.  642.)  In  this  case  the  judgment  had  been  set 
aside  and  a  temporary  injunction  issued.  The  bond 
was  dated  June  i6th,  but  was  not  delivered  to  the 
sheriff  until  June  28th,  the  day  of  the  sale.  The 
sheriff  erroneously  supposed  that  the  bond  would 


§§650,651       SHERIFFS  AND  CONSTABLES.  400 

indemnify  him  for  selling,  notwithstanding  the  re- 
straining order. 

§  650.     Agreement    to    indemnify    sheriff.       An 

agreement  to  indemnify  a  sheriff  for  seizing  property 
under  execution  is  valid  if  the  parties  are  in  good 
faith  seeking  to  enforce  a  legal  right;  but  an  agree- 
ment to  indemnify  a  party  for  a  willful  trespass  about 
to  be  committed  is  against  public  policy  and  void. 
In  the  case  of  Stark  v.  Raney,  18  Cal.  622,  wherein 
the  sheriff  seized  and  sold  a  wagon  on  execution  in 
favor  of  Raney,  who  pointed  out  the  wagon,  request- 
ed the  sherifif  to  seize  it,  and  verbally  agreed  to  hold 
him  harmless,  etc.,  it  was  held,  in  a  suit  by  the  sheriff 
against  Raney  for  damages  recovered  against  the 
sherifif  for  the  seizure,  that  the  agreement  to  indem- 
nify is  valid;  that  it  was  not  a  "special  promise  to 
answer  for  the  debt,  default  or  miscarriage  of  an- 
other," within  the  statute  of  frauds — because  the 
sherifif  was  acting  not  for  himself,  but  as  agent  of 
Raney,  and  the  promise  was  to  be  responsible  for  his 
acts  as  such  agent.  It  was  held,  further,  that  the 
sherifif  was  entitled  to  recover,  not  simply  the  value 
of  the  property  which  he  had  been  compelled  to  pay, 
but  also  the  costs  incurred  by  him  in  defending  the 
suit  brought  to  recover  such  value;  that  his  claim  to 
indemnity  extends  to  the  entire  damages  to  which  he 
had  been  subjected  on  account  of  the  seizure. 

§651.    Liability  of  sureties  on  indemnity  bonds. 

Where  a  sherifif  seizes  goods  on  two  attachments  in 
behalf  of  dififerent  plaintififs,  and  the  property  being 
claimed  by  a  third  person,  the  plaintififs  in  the  attach- 
ment suits  execute  to  the  sherifif  separate  indemni- 


40I  SUITS  AGAINST  SHERIFFS.  §  652 

fying  bonds,  there  is  no  joint  liability  between  the 
plaintiffs  to  the  sheriff.  Each  bond  must  be  sued  on 
as  an  independent  obligation.  Where  an  indemnity 
bond  is  given  to  a  sheriff  to  hold  him  harmless,  and 
pay  any  judgment  which  may  be  rendered  against 
him  by  reason  of  his  seizure  of  certain  property,  his 
remedy  at  law  on  the  bond  is  clear  for  the  amount  of 
any  such  judgment,  whether  he  be  solvent  or  not,  or 
whether  his  official  sureties  could  be  held  or  not, 
and  a  bill  in  equity  will  not  lie.  {White  v.  Fratt,  13 
Cal.  521.) 

A  bond  was  given  by  a  plaintiff  to  a  constable  to 
indemnify  him  from  liability  for  selling  certain  prop- 
erty claimed  and  actually  owned  by  persons  other 
than  the  execution  debtor;  and  the  property  having 
been  sold,  and  the  owners  having  sued  the  constable 
and  recovered  judgment  against  him,  the  latter  as- 
signed the  bond  to  them,  and  they  released  him  from 
liability  on  the  judgment:  Held  {McBeth  v.  Mcln- 
tyre,  57  Cal.  49) ,  that  the  release  of  the  constable  did 
not  operate  to  release  the  obligors  on  the  bond.  Sub- 
stantially, the  constable  paid  the  judgment  against 
him  by  assigning  the  bond. 

§  652.  Alteration  of  bond.  In  an  action  by  a 
sheriff  on  an  indemnity  bond  it  appeared  that  after 
its  execution  the  bond  had  been  altered  by  substitut- 
ing "C.  J.  Hubner"  for  "J.  M.  Berry"  as  the  claim- 
ant of  the  property  seized  by  the  sheriff,  and  after- 
wards, and  before  the  trial,  by  erasing  the  former  and 
restoring  the  latter  name,  thus  restoring  it  to  its  orig- 
inal condition,  but  there  was  no  allegation  or  proof 
that  the  alterations  were  made  with  a  fraudulent  de- 
sign, or  that  the  defendants  could  possibly  be  injured 


§§  ^S3,  654       SHERIFFS  AND  CONSTABLES.  402 

by  them:  Held  (Rogers  v.  Shaw,  59  CaL  260),  that 
the  alterations  did  not  render  the  instrument  void. 

§  653.     Conditions    of    indemnity    bond.      If  in  a 

bond  to  indemnify  a  sheriff  for  replevying  property 
claimed  by  a  person  other  than  the  defendant  in  the 
writ  the  obligors  undertake  to  indemnify  him  from 
any  damage  he  may  sustain  by  reason  of  any  costs, 
suits,  judgments,  and  executions  that  shall  come  or 
be  brought  against  him,  the  sherifif  cannot  maintain 
an  action  on  the  bond  because  a  judgment  has  been 
recovered  against  him,  but  must  first  pay  the  judg- 
ment. (Lot  V.  Mitchell,  32  Cal.  24.)  In  this  case 
the  obligors  do  not  undertake  anything  except  they 
will  indemnify  the  sheriff  from  any  actual  damage 
that  he  may  sustain  by  reason  of  any  costs,  suits,  judg- 
ments, and  executions  that  shall  come  or  be  brought 
against  him. 

When  a  sheriff  takes  an  indemnity  bond  against  the 
claim  of  a  third  party  in  attachment  or  execution,  and 
it  is  provided  in  the  bond  that  the  officer  may  retain 
for  a  reasonable  time,  as  additional  security  against 
such  claim,  all  moneys  that  may  come  into  his  hands 
by  reason  of  said  attachment  or  any  execution  in  said 
action,  the  term  "reasonable  time"  will  enable  the 
officer  to  retain  such  moneys  until  the  determination 
of  any  suit  that  has  been  brought  against  him  therein 
by  the  claimant.     (Scherr  v.  Little,  60  Cal.  614.) 

§  654.  Actions  upon  indemnity  bonds.  Instances 
of  disastrous  results  from  loosely  drawn  complaints 
in  actions  to  recover  upon  undertakings  given  to  pre- 
vent the  levy,  and  for  the  release  of  attachments,  are 
so  frequent  that  a  word  or  two  upon  that  subject  is 


403  SUITS  AGAINST  SHERIFFS.  §  654 

deemed  not  out  of  place  in  this  work.  If  the  com- 
plaint does  not  aver  either  that  the  giving  of  the 
undertaking  sued  on  prevented  the  levy  of  the  at- 
tachment, or  that  the  property  was  released  upon  the 
giving  of  the  undertaking,  it  fails  to  aver  the  very 
gravamen  and  essential  gist  of  the  cause  of  action 
itself.  In  an  action  upon  an  undertaking  given  to 
prevent  the  levy  of  an  attachment,  in  the  case  of  Co- 
burn  V.  Pearson,  57  Cal.  306,  the  complaint  stated 
that  the  sheriff  did  proceed  to  levy  upon  and  attach 
certain  personal  property;  and  that  before  the  com- 
pletion of  said  levy  the  defendants,  for  the  purpose 
of  preventing  the  levy  or  the  completion  thereof,  ten- 
dered the  sheriff  the  undertaking  required  by  law, 
etc.,  which  undertaking  was  duly  taken  and  accepted 
by  the  sherifif.  It  was  held  that  the  complaint  was 
defective  in  not  stating  that  the  sherifif  did  not  com- 
plete the  levy,  or  that  he  proceeded  no  further  there- 
with.   In  this  case  the  court  said: — 

"Assuming  that  the  words  'did  proceed  to  levy 
upon,'  etc.,  do  not  necessarily  imply  that  the  sherifif 
took  the  property  into  his  possession  (and  any  acts 
clearly  indicating  his  purpose  to  subject  it  to  his 
control,  would  give  the  sherifif  the  legal  possession  as 
against  the  defendant  in  attachment),  the  complaint 
contains  no  averment  that  the  sherifif  did  not  'com- 
plete' the  levy,  or  that  he  proceeded  no  further  there- 
with. This  would  seem  to  be  necessary.  It  is  urged 
that  the  averment  that  the  sherifif  duly  took  and 
accepted  the  undertaking  is  sufficient,  inasmuch  as 
that  it  will  be  presumed  that  the  sherifif  did  his  duty, 
and  that  he  would  not  have  taken  the  undertaking 
and  also  the  property.  But  such  presumptions  are 
applied,  in  proper  cases,  as  a  rule  of  evidence,  not  of 


§  654  SHERIFFS  AND  CONSTABLES.  404 

pleading.  A  party  must  allege  the  material  ultimate 
facts,  even  although  some  other  fact,  if  proven,  might 
create  a  presumption  of  the  existence  of  one  of  the 
facts  alleged.  Besides,  here  there  can  be  no  doubt 
that  the  burden  was  cast  on  plaintiff  at  the  trial  to 
prove  the  cessation  of  proceedings  towards  a  levy,  or 
a  return  of  the  property  to  the  extent  to  which  a 
caption  had  been  effected.  Otherwise,  the  consid- 
eration of  the  undertaking  (not  under  seal)  would 
not  be  proven.  In  Palmer  v.  Melvin,  6  Cal.  651,  it 
was  held  that  a  complaint  upon  a  bond  given  to  re- 
lease property  from  attachment  was  defective,  be- 
cause it  did  not  aver  that  the  property  was  released 
upon  the  delivery  of  the  bond."  The  court  said:  "It 
is  necessary  to  allege  the  consideration  for  the  under- 
taking, and  a  mere  reference  to  the  condition  of  the 
bond  is  insufficient."  The  same  rule  is  laid  down  in 
Williamson  v.  Blattan,  9  Cal.  500,  where  the  court 
say,  further,  that  "the  failure  to  allege  the  release  of 
the  property  may  be  taken  advantage  of  by  general 
demurrer."  In  Nickerson  v.  Chatterton,  7  Cal.  568, 
it  was  held  that  in  an  action  against  the  sureties  on  a 
replevin  bond  it  is  necessary  to  allege  that  the  prop- 
erty was  delivered  to  the  party  for  whom  the  bond 
was  given;  in  Los  Angeles  v.  Babcock,  45  Cal.  252, 
that  in  a  suit  on  a  bail  bond  the  complaint  must  allege 
that  the  person  bailed  was  released  from  custody;  in 
Jenner  v.  Stroh,  52  Cal.  504,  that  when  action  was 
commenced  on  an  undertaking  given  to  procure  the 
vacation  of  a  default  judgment,  the  complaint  should 
have  averred  that  the  judgment  was  set  aside.  In 
such  cases  the  consideration  for  which  the  under- 
taking is  executed  and  delivered  must  be  alleged  and 
proved. 


405  SUITS  AGAINST  SHERIFFS.  §  655 

§  655.  Plaintiff  bound  by  his  bond.  In  the  case 
of  Graves  v.  Moore,  58  Cal.  435,  the  plaintiff,  as 
sheriff,  under  an  execution  in  favor  of  the  defendants, 
Moore,  Hunt  &  Co.,  levied  on  certain  personal  prop- 
erty, including  a  billiard  table;  but  before  the  sale 
Strahle  &  Co.  and  also  one  Soberanes  each  claimed 
the  property  pursuant  to  section  689  of  the  Code  of 
Civil  Procedure.  The  sheriff  sent  written  notice  of 
the  claim  made  by  Soberanes,  and  also  (it  is  claimed) 
of  the  claim  of  Strahle  &  Co.,  to  Moore,  Hunt  & 
Co.,  who  delivered  to  the  sheriff  an  indemnity  bond 
against  the  claim  of  Soberanes,  and  ordered  him  to 
sell.  After  the  sale  Strahle  &  Co.  sued  the  sheriff 
for  the  value  of  the  property,  which  was  paid.  In 
an  action  brought  by  the  sheriff  to  recover  the  amount 
of  the  judgment,  also  $100  paid  as  counsel  fees,  the 
court  found,  among  other  facts,  that  the  plaintiff  noti- 
fied the  defendants  of  the  claim  of  Strahle  &  Co.,  and 
was  thereupon  directed  to  sell.  It  appears  that  upon 
being  served  with  the  summons  in  the  suit  brought 
against  him  by  Strahle  &  Co.  the  sheriff  notified  the 
attorney  of  Moore,  Hunt  &  Co.,  who  appeared  in 
the  action,  but  afterwards  abandoned  the  same,  and 
notified  the  sheriff  that  they  would  make  no  further 
defense.  The  court  found  that  the  officer  was  en- 
titled to  recover  not  only  the  amount  of  the  judgment, 
but  also  counsel  fees,  because  Moore,  Hunt  &  Co., 
by  their  agreement  of  indemnity,  engaged  to  save 
the  sheriff  from  the  legal  consequences  of  selling  the 
property  of  the  claimant,  and  their  engagement  ap- 
plied not  only  to  the  act  of  selling,  but  to  all  the  con- 
sequences resulting  to  him  from  that  act.  {Civ.  Code, 
sees.  2772,  2775.)  Having  been  compelled  to  pay  by 
the  judgment  against  him,  he  had  a  right  to  recover 


§§  6S6,  657       SHERIFFS  AND  CONSTABLES.  406 

not  only  the  amount  of  the  judgment,  but  the  expenses 
attending  the  action  which  he  had  to  defend.  (Duf- 
field  V.  Scott,  3  T.  R.  374;  Stark  v.  Raney,  18  Cal. 
622.) 

The  judgment  against  the  sureties  is  conclusive  evi- 
dence of  his  right  to  recover  against  them  on  the  bond 
of  indemnity,  nor  can  they  complain,  as  by  virtue  of 
section  387  of  the  Code  of  Civil  Procedure  of  Cali- 
fornia, the  sureties  have  the  right  to  intervene  in  the 
suit  against  the  officer  and  defend  the  suit  as  a  party 
to  the  record. 

§  656.  Judgment  against  sheriff.  The  provision 
of  the  statute  making  the  judgment  in  an  action 
against  a  sherifif  conclusive  evidence  against  his  in- 
demnifier,  where  the  latter  has  been  notified  of  the 
action,  is  founded  upon  the  principle  that  the  action 
under  such  circumstances  is  in  substance  against  the 
indemnifier — the  real  party  in  interest — and  that 
he  has  in  that  action  an  opportunity  to  make  any 
defense  that  may  exist.  Where,  therefore,  the  in- 
demnifier has  been  notified  of  the  action  against  the 
sherifif,  he  cannot  maintain  a  bill  in  equity  to  set 
aside  the  judgment  obtained  therein,  except  under 
such  conditions  as  would  have  enabled  him  to  main- 
tain it  had  he  been  the  nominal  as  well  as  real  party 
defendant  to  the  first  action.  (Dutil  v.  Pacheco,  21 
Cal.  442,  82  Am.  Dec.  749.) 

§  657.    An  estoppel  that  protects  the  sheriff.     If 

a  court  or  referee  on  proceedings  supplementary  to 
execution  orders  property  of  the  judgment  debtor  to 
be  delivered  up  to  the  sherifif  to  be  sold  on  the  exe- 
cution, the  judgment  creditor  is  estopped  by  the  order 


407  SUITS  AGAINST  SHERIFFS.        §§  658,  659 

from  maintaining  an  action  against  the  sheriff  for 
selling  the  property.  {McCullough  v.  Clark,  41  Cal. 
304.)  In  this  case  the  judgment  debtor  had  an  insur- 
ance policy  which  he  claimed  to  be  exempt  from 
execution.  The  court  decided  that  that  particular 
policy  was  not  exempt,  and  that  the  sherifif,  in  seeking 
to  apply  it  toward  the  payment  of  the  judgment  in 
obedience  to  that  order  of  the  court,  was  only  per- 
forming a  duty  enjoined  upon  him  by  law,  and,  there- 
fore, could  not  be  treated  as  a  wrongdoer. 

§  658.     Indemnity  bond — Jurisdiction  of  courts. 

In  an  action  against  the  sheriff  by  claimants  of  at- 
tached property,  when  judgment  has  been  rendered 
against  him,  and  he  moves  for  judgment  over  against 
the  sureties  on  an  indemnity  bond  given  to  him  under 
section  1055  of  the  Code  of  Civil  Procedure,  the  su- 
perior court,  in  which  the  action  was  brought,  has 
jurisdiction  to  give  judgment  against  the  sureties, 
although  each  is  bound  for  less  than  three  hundred 
dollars.  {Moore  v.  McSleeper,  102  Cal.  277,  36  Pac. 
593-) 

§  659.    Penalty  for  not  paying  over  moneys.    The 

statutory  penalty  against  sheriffs  for  the  non-payment 
of  moneys  collected  on  execution  is  only  recoverable 
when  the  sheriff,  by  his  return,  admits  the  collection 
of  the  money,  but  refuses  to  pay  it  over.  If  it  were 
otherwise,  an  error  in  judgment,  or  even  a  hesitation 
to  decide  between  adverse  claimants,  might  work  the 
ruin  of  any  honest  and  conscientious  officer.  The 
statute  gives  twenty-five  per  cent  damages  on  the 
amount  collected,  and  ten  per  cent  per  month  in 
addition,  from  the  time  of  the  demand.    It  not  infre- 


§§  66o,  66 1       SHERIFFS  AND  CONSTABLES.  408 

quently  occurs  that  a  sheriff,  on  account  of  contests 
between  creditors,  and  his  own  inability  to  decide  the 
right,  declines  a  demand,  which  turns  out  to  have 
been  justly  and  properly  made.  In  such  a  case,  to 
deprive  him  of  the  benefit  of  his  return  and  visit 
upon  him  the  heavy  penalties  of  the  statute  for  failing 
to  pay  the  money  on  demand,  would  be  a  cruelty  and 
injustice  which  the  law  never  contemplated.  The 
argument  that  sheriffs  might  avail  themselves  of  this 
doctrine  and  make  false  returns,  so  as  to  avoid  the 
penalties  of  the  act,  should  be  without  any  weight, 
and  not  entitled  to  consideration.  The  courts  will 
presume  that  every  officer  will  faithfully  perform  his 
duty,  and  has  done  so  in  every  instance,  until  the  con- 
trary is  shown. 

§  660.  Remedy  by  motion.  The  remedy  by  mo- 
tion against  a  sheriff  and  his  sureties  to  compel  him 
to  pay  over  money  collected  on  execution  was  only 
given  for  cases  of  intentional  delinquency  on  the  part 
of  the  sheriff  as  a  punishment  for  his  willful  or 
corrupt  neglect  of  duty,  and  was  not  designed  to  em- 
brace a  case  in  which  he  declined  to  pay  over  moneys 
collected  under  circumstances  of  a  bona  fide  well- 
grounded  doubt  of  the  authority  of  the  party  to  de- 
mand it.      (Wilson  V.  Broder,  10  Cal.  486.) 

§  661.  Liability  for  acts  of  deputy.  In  an  action 
of  trespass  against  a  sheriff,  where  he  is  declared 
against  personally  and  not  as  sheriff,  it  is  competent 
to  prove  that  the  defendant  was  sheriff  and  that  his 
deputy  as  such  committed  the  trespass.  The  sheriff 
is  liable  for  the  acts  of  his  deputy.  In  such  a  case  it 
is  not  necessary  to  prove  that  the  defendant  directed 


409  SUITS  AGAINST  SHERIFFS.        §§  662-664 

his  deputy  to  seize  the  particular  property  in  ques- 
tion in  order  to  hold  the  defendant  liable.  {Poinsett 
V.  Taylor,  6  Cal.  78.  See,  also,  sections  17,  640, 
ante.) 

§  662.    Officer  not  responsible  through  laches  of 

another.  It  is  held,  in  Luck  v.  Madden,  36  Cal. 
208,  wherein  a  county  clerk  was  sued  for  an  alleged 
failure  to  perform  his  duty  in  the  matter  of  issuing 
a  writ  of  attachment,  that  "although  public  officers 
should  be  made  to  answer  in  damages  to  all  persons 
who  may  have  been  injured  through  their  malfeas- 
ance, omission,  or  neglect,  but  if  the  damages  would 
have  been  sustained,  notwithstanding  the  mal-conduct 
of  the  officer,  or  if  the  injured  party  has  by  his  fault 
or  neglect  contributed  to  the  result,  the  officer  cannot 
be  held  responsible." 

§  663.  Release  of  sheriff  by  stipulation.  Where 
an  action  of  replevin  is  brought  to  recover  property 
in  the  possession  of  a  sheriff  under  attachment,  and 
the  parties  stipulate  that  the  property  shall  be  turned 
over  to  a  third  party  to  await  the  final  judgment  in 
the  cause,  the  sheriff  is  released  from  all  liability,  and 
a  judgment  in  form  only  can  be  taken  against  him. 
{Te^nple  v.  Alexander,  53  Cal.  3.) 

§  664.    Offices    of    sheriff    and    tax-collector    are 

separate.  The  offices  of  sheriff  and  tax-collector  are 
as  distinct  as  though  filled  by  different  persons.  The 
duties  and  obligations  of  the  one  are  entirely  inde- 
pendent of  the  duties  and  obligations  of  the  other. 
They  are  not  so  blended  that  the  bond  executed  for 
the  faithful  performance  of  the  duties  appertaining 


§  665  SHERIFFS  AND  CONSTABLES.  410 

to  the  one  would  embrace,  in  the  absence  of  the  stat- 
ute, the  obligations  belonging  to  the  other.  {People 
V.  Edwards,  9  Cal.  286.) 

§  665.  Principal  and  deputy — Levy  of  separate 
writs.  In  the  case  of  Whitney  v.  Butterworth,  13 
Cal.  336,  73  Am.  Dec.  584,  the  court  said:  "This 
question  touches  the  liability  of  the  sheriff  for  not 
levying  an  attachment  put  in  his  hands  on  Sunday; 
the  goods  of  defendant  having  been  seized  by  his 
deputy  on  Monday,  though  the  last  writ  came  to  his 
hands  early  on  the  same  day  and  was  levied  on  the 
property  which  was  disposed  of  by  the  last  writ — 
so  that  the  first  remained  unsatisfied.  .  .  .  The  speed 
with  which  the  sheriff  must  proceed  may  depend 
upon  the  apparent  necessity  for  quick  action.  But 
we  have  found  no  case  which  holds  that  the  mere 
delay  of  a  few  hours,  without  some  showing  of  special 
urgency  has  been  held  sufficient  to  charge  the  sheriff. 
If  we  suppose,  then,  that  the  process  reached  the 
hands  of  the  principal  sheriff  at  one  o'clock  on  Mon- 
day morning,  we  do  not  perceive  that  the  sheriff 
would  have  been  liable — nothing  else  appearing — 
for  failure  to  levy  it  before.  But  the  particular  facts 
of  this  case  make  it  stronger  for  the  sheriff.  The  at- 
tachment of  plaintiff  was  placed  in  the  principal 
sheriff's  hands  on  the  night  of  Sunday  between  nine 
and  ten  o'clock.  But  it  did  not  legally  come  to  his 
hands  as  sheriff  and  for  service  until  twelve  o'clock. 
Fifteen  minutes  after  twelve  the  other  attachment 
came  to  the  hands  of  the  deputy;  of  this,  it  seems, 
the  sheriff  had  no  notice;  and  the  deputy  levied  it  at 
or  about  one  o'clock.  It  seems,  then,  that  the  laches 
of  the  sheriff  in  delaying  this  levy  for  an  hour  at  mid- 


411  SUITS  AGAINST  SHERIFFS.  §665 

night,  is  the  foundation  of  his  liability.  This  would 
be  too  harsh  and  unreasonable  a  requisition.  It  is 
plausibly  argued  that  the  deputy  and  his  principal 
are  the  same  person  in  law;  and  that  the  attachment 
in  the  hands  of  the  defendants  is,  in  legal  eflfect,  in 
the  hands  of  the  principal;  and,  consequently,  the  case 
is  that  of  an  officer  having  a  senior  writ  and  levying 
a  junior  writ  on  the  property  of  the  defendant.  But 
the  answer  to  this  argument  is  that  here  the  question 
is  one  of  diligence,  and  that  it  cannot  be  contended 
that  the  mere  omission  of  the  deputy  to  inform  the 
principal  of  his  having  process  is  such  negligence  as 
to  charge  him. 

"We  have  seen  that  the  sherifif  is  not  absolutely  re- 
sponsible for  not  executing  process  of  this  sort.  He 
is  responsible  for  unreasonably  or  not  reasonably  exe- 
cuting such  process.  But  the  test  is.  Was  a  failure, 
in  the  absence  of  any  special  circumstances,  to  execute 
this  process,  unreasonable,  or  did  it  subject  the  sherifif 
to  responsibility  for  the  debt?  We  may  in  this  con- 
nection leave  out  of  question  the  discussion  as  to  the 
day  (Sunday)  on  which  the  writ  of  the  plaintifif  was 
received.  It  is  certain  that,  for  all  judicial  purposes, 
Sunday  is  no  day  at  all.  The  sherifif  need  not  on  that 
day  indorse  on  the  writ  the  fact  of  its  reception.  If 
given  to  him  on  that  day  he  did  not  receive  it  as  an 
officer,  but  as  the  mere  agent  of  the  plaintifif.  He 
could  do  nothing  with  it  on  that  day.  He  might,  if 
he  chose,  recognize  the  receipt  of  it,  but  it  imposed 
on  him  no  higher  or  other  duties  than  if  he  had  re- 
ceived it  on  the  next  day.  He,  for  all  practical  pur- 
poses, so  far  as  respects  this  writ,  was  not  the  sherifif 
at  all  on  Sunday.  But  we  may  safely  concede,  for 
all  purposes  of  this  suit,  that  he  received  the  process 


§665  SHERIFFS  AND  CONSTABLES.  412 

on  the  next  day  and  even  at  the  beginning  of  that 
day.  Was  he  bound,  then,  on  this  assumption  to  go 
on  and  execute  the  writ  immediately  after  having 
received  it,  no  peculiar  necessity  or  apparent  reason 
being  shown  why  he  should  do  so?  No  authorities 
have  been  cited  to  show  that  a  sheriff  is  bound  to 
quit  everything  else  immediately  on  receiving  an  at- 
tachment or  execution,  and  proceed  to  levy. 

''The  deputy  had  received  Clark  &  Co.'s  attach- 
ment early  in  the  morning  of  Monday,  perhaps  at 
the  very  instant  which  marked  the  period  which  sep- 
arated Sunday  from  Monday  in  the  computation  of 
time.  But  though  Whitney's  writ  was  in  the  hands 
of  the  sheriff  before  this  time,  yet  the  sheriff  could 
do  nothing  with  it — did  not  legally  even  receive  it  in 
his  official  capacity  before.  His  connection  with  the 
writ  of  Whitney,  as  sheriff,  commenced  at  the  very 
time — at  the  utmost — when  his  deputy  had  the  writ 
of  Clark.  But  if  Clark  had  no  writ,  we  do  not  see 
that  the  sheriff  would  have  been  bound  to  go  at  once, 
on  the  instant  when  Monday  commenced,  and  levy 
on  the  property  of  the  defendants  in  attachment.  Nor 
was  the  sheriff  bound  to  the  degree  of  diligence  which 
required  him  to  communicate  to  his  deputy  the  intel- 
ligence that  he  had  received  the  writ  of  Whitney 
before  the  deputy  levied  the  process  of  Clark.  At- 
tachments do  not  bind  the  property  of  the  defendant 
from  the  time  of  the  issuance,  but  only  from  the  time 
of  the  actual  levy,  and  the  attachment  first  levied,  by 
our  statute,  has  the  priority. 

"But,  probably,  we  might  put  this  case  on  a  broad- 
er ground.  The  sheriff"  could  no  more  officially  re- 
ceive a  writ  on  Sunday  for  service  on  Sunday  than 
he  could  execute  it  on  Sunday.     Both  these  acts  are 


413  SUITS  AGAINST  SHERIFFS.  §665 

of  the  same  general  character  and  equally  within  the 
prohibition  of  the  statute.    Not  receiving  it  then  as 
sheriff,  he  received  it  as  the  mere  agent  of  the  plain- 
tiff.    He  so  received  it,  not  to  execute  it  on  Sunday, 
or  to  deal  with  it  as  a  writ  coming  to  him  on  that  day 
as  an  officer.    He  might  have  been  bound,  as  an  agent, 
to  deliver  it  to  the  sheriff,  or  to  treat  it  as  delivered 
when  he  could  act.    But  this  was  a  personal,  not  an 
official  contract;  it  was  a  mere  bailment  which  bound 
him,  probably,  as  a  man,  but  did  not  bind  him  as  a 
sheriff,  and,  if  he  chose  to  disregard  it  entirely,  we  do 
not  see  that  he  would  be  bound  as  an  officer.     It  is 
not  necessary  to  press  this  point,  for  the  reason  that  if 
he  was  bound  to  consider  it  as  placed  in  his  hands  on 
Monday,  at  one  o'clock,  there  was  no  such  negli- 
gence in  failing  to  execute  it  before  as  to  subject  him 
to  liability.     It  is  true  that  it  may  be  urged  that  the 
sheriff  and  the  deputy  are  one  person  in  law;  true,  so 
far  as  this,  that  the  sheriff  is  responsible  for  the  acts 
of  the  deputy;  but  no  one  would  contend  that  if  a 
sheriff  has  a  deputy  at  a  remote  precinct  of  a  county, 
and  a  writ  is  placed  in  his  hands,  and  he  executes  it 
on  property  in  his  precinct,  that  the  sheriff  would  be 
responsible  for  this,  if  the  consequences  were  to  de- 
prive B  of  the  recovery  of  a  claim  as  the  result  of 
this  levy — B  having  put  a  writ  in  the  hands  of  the 
sheriff,  at  the  county  seat,  an  hour  before  the  writ 
was  placed  in  the  hands  of  the  deputy.     Whitney 
trusted  the  sheriff  to  consider  that  the  writ  would  be 
in  his  hands  on  Monday,  and  to  receive  and  execute 
it  as  if  it  were  handed  to  him  on  that  day;  but  even 
if  it  had  been,  the  sheriff  was  not  bound  to  get  out  of 
his  bed   (no  special  circumstances  existing)   on  the 
rriorning  of  that  day  at  one  o'clock  and  immediately 


§  665  SHERIFFS  AND  CONSTABLES.  414 

proceed  to  the  execution  of  the  writ.  It  would  be 
unjust  to  hold  the  sheriff  to  this  degree  of  diligence, 
and,  we  think,  illegal.  We  reverse  the  judgment,  and 
remand  the  case."     [See,  also,  sec.  222,  ante.) 


CHAPTER    XXIII. 


WRIT  OF  ASSISTANCE. 


§  666.  Object  of  the  writ. 

§  667.  Plaintiff  entitled  to  immediate  service. 

§  668.  Against  whom  will  issue. 

§  669.  When  writ  will  be  refused. 

§  670.  When  writ  of  assistance  may  issue. 

§  671.  Where  tenants  in  common. 

§  672.  Who  not  to  be  removed. 

§  673.  Alias  writ. 

§  674.  False  return. 

§  666.  Object  of  the  writ.  A  writ  of  assistance 
is  the  appropriate  remedy  to  place  the  purchaser  of 
mortgaged  premises,  under  a  decree  of  foreclosure, 
in  possession,  after  he  has  obtained  the  sheriff's  deed. 

§  667.     Plaintiff    entitled    to    immediate    service. 

Under  the  writ  of  assistance  the  party  for  whose 
benefit  it  is  issued  is  entitled  to  immediate  possession. 
The  writ  commands  the  sheriff  to  forthwith  place  the 
plaintiff  in  possession,  and  it  is  only  by  his  consent 
that  any  delay  in  its  service  can  be  permitted. 

In  the  case  of  Chapman  v.  Thornburg,  17  Cal.  87, 
76  Am.  Dec.  571,  where  the  sheriff  received  a  writ 
of  assistance,  commanding  him  forthwith  to  deliver 
possession  of  certain  real  estate  to  plaintiff,  and  went 
with  plaintiff  to  the  premises  for  the  purpose  of  put- 
ting him  in  possession,  but  for  some  reason  not  stated 
— in  opposition  to  plaintiff's  wishes  and  against  his 
protestations — he  declined  to  take  any  action  in  the 


§  668  SHERIFFS  AND  CONSTABLES.  4-^6 

matter,  and  then,  on  a  subsequent  day,  the  sheriff 
proceeded  to  execute  the  writ;  but  the  parties  in  pos- 
session, being  the  parties  against  whom  the  writ  ran, 
had  in  the  mean  time  destroyed  a  number  of  valuable 
fixtures,  and  by  their  willful  and  malicious  acts  had 
injured  the  premises  in  other  respects:  Held,  that 
the  sheriff  was  liable  for  the  damage  thus  done;  that 
he  was  presumed  to  know  what  his  duty  was,  and  to 
have  acted  in  willful  violation  of  it;  and  that,  as  his 
duty  was  to  execute  the  writ  at  the  earliest  practicable 
moment,  and  he  neglected  and  refused  so  to  do,  it 
was  through  his  fault  that  the  parties  in  possession 
were  enabled  to  commit  the  injury,  and  he  must  re- 
spond in  damages,  however  remote. 

§  668.  Against  whom  will  issue.  A  writ  of  as- 
sistance can  only  issue  against  the  defendants  in  the 
suit  and  parties  holding  under  them  who  are  bound 
by  the  decree.  In  a  suit  for  foreclosure  all  persons 
interested  in  the  premises,  prior  to  the  suit,  whether 
purchasers,  heirs,  devisees,  remainder-men,  or  en- 
cumbrancers, must  be  made  parties,  otherwise  their 
rights  will  not  be  affected.  The  purchaser  under  a 
decree  takes  a  title  only  as  against  the  parties  to  the 
suit.     (Montgomery  v.  Tutt,  ii  Cal.  314.) 

One  Lefevre,  a  married  man,  purchased  certain 
real  estate,  subject  to  a  mortgage  thereon,  which  had 
been  previously  executed  by  his  grantor,  and  soon 
afterwards  died.  The  mortgagee  commenced  an  ac- 
tion to  foreclose  the  mortgage,  making  the  executors 
of  Lefevre,  but  not  the  widow,  a  party,  and  after  a 
decree  of  foreclosure  and  sale  and  expiration  of  the 
time  of  redemption  received  the  sheriff's  deed  (him- 
self being  the  purchaser),  and  thereupon  applied  to 


417  WRIT  OF  ASSISTANCE.  §  669 

the  court  for  a  writ  of  assistance  against  the  widow, 
who  retained  possession  of  a  portion  of  the  premises, 
which  on  demand  she  refused  to  surrender:  Held,  on 
appeal  from  an  order  denying  the  writ,  that  the  de- 
nial was  proper;  that  the  estate  conveyed  to  Lefevre 
became  thereby  the  common  property  of  himself  and 
wife;  that  upon  his  death  the  title  to  one  half  of  this 
property  vested  in  her,  subject  only  to  the  mortgage 
and  the  lien  for  the  payment  of  debts;  that  this  title 
was  not  affected  by  the  proceedings  in  the  foreclosure 
suit  to  which  she  was  not  a  party;  and  that,  not  being 
bound  by  the  decree,  a  writ  of  assistance  could  not  be 
issued  against  her.     {Burton  v.  Lies,  21  Cal.  88.) 

A  person  who,  pending  an  action  for  the  fore- 
closure of  a  mortgage,  and  with  notice  of  its  pen- 
dency, purchases  from  one  of  the  defendants  therein 
a  portion  of  the  mortgaged  premises,  occupies  the 
same  position  as  his  grantor  in  reference  to  the  issu- 
ance of  a  writ  of  assistance  in  favor  of  the  purchaser 
under  the  decree.  {Montgomery  v.  Byers,  21  CaL 
107.    See,  also,  sees.  670,  671,  post.  ) 

§  669.  When  writ  will  be  refused.  If  the  court 
in  an  action  to  foreclose  a  mortgage  does  not  acquire 
jurisdiction  of  the  person  owning  the  land  at  the 
time  of  the  foreclosure,  a  writ  of  assistance  against 
the  owner  or  his  grantees  will  be  refused.  {Stein- 
bach  V.  Leese,  27  Cal.  296.) 

A  writ  of  assistance  will  not  be  issued  against  a 
purchaser  of  the  mortgaged  premises  who  buys  dur- 
ing the  pendency  of  a  suit  to  foreclose  and  who  is  not 
a  party  to  the  suit  without  actual  or  constructive  no- 
tice of  its  pendency.  {Harlan  v.  Rackerby,  24  Cal. 
561.)     In  this  case  the  lis  pendens  in  the  foreclosure 


§670  SHERIFFS  AND  CONSTABLES.  418 

suit  was  filed  subsequent  to  the  purchase  of  the  prop- 
erty from  the  defendant  in  that  suit,  and  the  pur- 
chaser was  entitled  to  be  heard  in  his  defense  before 
he  could  be  deprived  of  his  property. 

In  Langley  v.  Voll,  54  Cal.  435,  upon  an  applica- 
tion for  a  writ  of  assistance  to  place  the  grantee  of 
the  purchaser  of  real  estate  under  a  judgment  sale  in 
possession,  it  appeared  that  the  defendants  had  ac- 
quired, or  claimed  to  have  acquired,  a  new  right  to 
the  possession  from  the  purchaser;  it  was  held  that 
the  writ  should  have  been  denied  and  the  parties  left 
to  settle  their  rights  in  a  regular  suit. 

A  party  who  forecloses  a  mortgage  given  by  one 
partner  on,  and  obtains  a  sheriff's  deed  for,  an  undi- 
vided interest  to  partnership  property,  without  mak- 
ing the  other  partner  a  party  to  the  action,  is  not 
entitled  to  a  writ  of  assistance  to  be  placed  in  posses- 
sion as  against  a  receiver  who  has  been  appointed  by 
the  court,  at  the  instance  of  such  other  partner,  in  an 
action  commenced  by  him  to  dissolve  the  partnership 
and  have  the  partnership  property  sold  to  pay  the 
debts.     {Autenreith  v.  Hessenauer,  43  Cal.  356.) 

§  670.    When  writ  of  assistance  may  issue.     The 

power  of  a  court  to  issue  writs  of  assistance  is  limited 
to  sales  on  judgments  rendered  by  the  same  court  to 
which  the  application  for  a  writ  of  assistance  is  made, 
and  also  for  the  putting  in  possession  of  a  purchaser 
under  a  constable's  deed,  in  which  last  case  the  writ 
may  issue  out  of  the  proper  court  of  record  upon 
showing  made  as  to  the  judgment  under  which  sale 
was  made.     {People  v.  Doe,  31  Cal.  220.) 

If  the  decree  in  a  foreclosure  suit  directs  the  sale 
of  all  the  mortgaged  premises,  and  forecloses  and 


419  WRIT  OF  ASSISTANCE.  §§671,  672 

bars  the  equity  of  redemption  of  the  defendants,  and 
directs  that  the  purchaser  at  the  sheriff's  sale  be  let 
into  possession,  the  person  who  receives  the  sheriff's 
deed  after  a  sale  is  entitled  to  a  writ  of  assistance  as 
against  all  the  defendants  who  were  served  with 
process  or  appeared  in  the  action.  This  rule  pre- 
vails as- against  a  defendant  who  is  not  mentioned  in 
the  decree  by  name,  and  also  against  one  whose  name 
is  not  mentioned  in  the  sheriff's  deed.  (Frisbie  v. 
Fogarty,  34  Cal.  11.) 

§  671.  Where  tenants  in  common.  It  is  the  duty 
of  the  sheriff  in  the  execution  of  a  writ  of  assistance 
to  place  the  purchaser  on  foreclosure  of  mortgage 
of  an  estate  in  common  in  the  possession  of  every  part 
and  parcel  of  the  land  jointly  with  the  other  tenants 
in  common.  {Tevis  v.  Hicks,  38  Cal.  234.)  In  this 
case  the  sheriff  found  on  going  to  the  ranch  of  de- 
fendant that  Mrs.  Hicks,  wife  of  defendant,  held  in 
her  own  right  as  her  separate  property  an  undivided 
interest  in  the  whole  rancho,  derived  from  a  source 
independent  of  her  husband.  In  the  opinion  of  the 
court  "she  was  not  liable,  under  any  writ  to  which 
the  applicant  has  shown  himself  entitled,  to  be  ejected 
or  removed  from  the  rancho,  or  any  portion  thereof; 
but  she,  or  any  one  in  possession  for  her,  was  and  is 
bound  to  admit  the  applicant  to  a  joint  and  com- 
mon possession  and  occupancy  with  her,  not  only  of 
the  house  and  two  hundred  acres  surrounding  the 
same,  but  of  every  part  and  parcel  of  the  entire 
rancho." 

§  672.  Who  not  to  be  removed.  In  the  execu- 
tion of  the  writ  the  sheriff  cannot  remove  any  of  the 


§§  ^72^  ^74       SHERIFFS  AND  CONSTABLES.  420 

tenants  in  common  who  hold  under  a  title  derived 
from  a  source  independent  of  him  through  whom  the 
purchaser  claims.     (Tevis  v.  Hicks,  38  Cal.  234.) 

§  673.  Alias  writ.  If  the  return  to  the  first  writ 
does  not  clearly  declare  that  it  has  been  fully  exe- 
cuted, and  it  is  made  to  appear  by  affidavits  that  it 
has  not  been,  it  is  competent  for  the  court  to  issue 
another  writ.     (Tevis  v.  Hicks,  38  Cal.  234.) 

§  674.  False  return.  If  the  sheriff  neglects  or 
refuses  to  fully  execute  the  writ,  or  makes  a  false 
return  of  his  acts  thereunder,  he  is  liable  to  the  party 
aggrieved  for  all  accruing  damages. 


CHAPTER    XXIV. 


WRIT  OF   RESTITUTION. 


§  675.  Requirements  of  the  writ. 

§  676.  Writ  does  not  detennine  right  of  property. 

§  677.  Whom  the  sheriff  may  dispossess. 

§  678.  Who  bound  by  judgment  in  ejectment. 

§  679.  Whom  the  sheriff  may  not  dispossess. 

§  680.  Who  may  be  removed. 

§  681.  Notice  of  pending  suit. 

§  682.  Evasion  of  process. 

§  683.  Colorable  possession  of  land. 

§  684.  Possession  of  third  parties. 

§  685.  When  mandamus  will  issue. 

§  686.  When  forcible  entry  will  not  lie  against  sheriff. 

§  687.  Must  show  right  of  occup^mcy. 

§  688.  When  sheriff  may  demand  an  indemnity  bond. 

§  689.  Error  in  writ. 

§  675.  Requirements  of  the  writ.  The  writ  of 
restitution  requires  the  officer  to  restore  the  plaintiff 
to  possession  of  the  premises  described  therein,  and 
usually  to  make  a  money  judgment  due  to  plaintiff 
out  of  the  property  of  the  defendant.  Under  it  the 
plaintiff  is  entitled  to  immediate  possession  of  the 
premises  and  to  the  money  judgment  as  soon  as  it 
can  be  made. 

§  676.    Writ  does  not  determine  right  of  property. 

The  writ  of  restitution  obtained  by  the  defendants  in 
an  action  of  forcible  entry  and  detainer  does  not  de- 
termine the  right  of  property  or  the  right  of  pos- 
session. It  simply  decides  a  restoration  to  immediate 
possession,  which  has  been  taken  away  by  an  illegal 


§  677  SHERIFFS  AND  CONSTABLES.  422 

and  unwarranted  ouster  tending  to  produce  a  breach 
of  the  peace. 

§  677.  Whom  the  sheriff  may  dispossess.  "What 
parties  can  be  dispossessed  under  a  writ  of  habere 
facias  possessionem  under  any  and  all  circumstances, 
is  not  very  clear  upon  authority.  Some  cases  go  so 
far  as  to  hold  that  all  persons  who  enter  into  pos- 
session after  the  commencement  of  the  action,  regard- 
less of  how  or  by  what  title  they  entered,  must  go 
out,  upon  the  ground  that  otherwise  there  might  be 
no  end  to  litigation;  while  other  cases  seem  to  go  no 
further  than  to  hold  that  the  defendant  and  those 
entering  under  or  succeeding  to  him  in  the  possession 
of  the  land  only  need  go  out,  upon  the  ground  that 
none  are  affected  by  the  judgment  except  parties  and 
privies,  and  that  no  one  can  be  deprived  of  his  prop- 
erty without  first  having  been  allowed  his  day  in 
court;  and  we  apprehend,"  say  the  court  in  the  case 
of  Long  i;.  Neville,  29  Cal.  131,  "that  these  two  prin- 
ciples, which  practically  amount  to  the  same  thing, 
together  furnish  the  true  test  for  the  solution  of  every 
case.  .  .  .  Prima  facie,  all  who  come  into  possession 
after  action  brought  must  go  out,  for  the  presumption 
is,  nothing  to  the  contrary  appearing,  that  they  came 
in  under  the  defendant." 

In  this  case  it  was  held  that  it  is  the  duty  of  the 
sheriff,  having  the  writ  of  habere  facias  possessionem, 
to  remove  all  persons  who  came  upon  the  property 
after  the  suit  was  brought,  except  a  person  other  than 
the  defendant  who  is  in  possession  under  a  title  ad- 
verse to  the  defendant;  and  that  where  ejectment  is 
brought  against  a  tenant  alone,  and  pending  the  ac- 
tion the  landlord  dispossesses  him  and  leases  to  an- 


423  WRIT  OF  RESTITUTION.  §  678 

Other  tenant  who  has  no  notice  of  the  pendency  of  the 
action,  it  is  the  duty  of  the  sherifif  who  receives  the 
writ  of  habere  facias  possessionem  to  remove  the  sec- 
ond tenant. 

Willis  Long  and  W.  B.  Long  commenced  an  ac- 
tion of  ejectment  against  two  persons  named  Hull, 
who  were  in  the  actual  possession  of  the  land  at  the 
time  the  action  was  brought.  The  Hulls  were  in  pos- 
session as  tenants  of  one  Ellis,  who  attempted  to  inter- 
vene by  petition,  but  the  plaintiffs  demurred,  and  the 
demurrer  was  sustained.  The  Hulls  made  default, 
and  judgment  was  entered  against  them,  and  them 
only,  for  the  possession  of  the  land.  Pending  the 
action  of  ejectment,  Ellis  brought  an  action  against 
the  Hulls,  obtained  judgment,  and  dispossessed  the 
Hulls.  Afterwards  Ellis  leased  the  land  to  one 
Brown,  who  was  in  possession  at  the  time  the  sherifif 
received  the  writ.  The  sherifif  refused  to  execute  the 
writ  upon  Brown.  The  supreme  court  held  that 
Brown  came  in  under  the  same  title  and  held  the 
same  right  to  the  possession  which  was  held  by  the 
Hulls  when  the  action  was  commenced  against  them, 
and  that  the  sherifif  could  have  lawfully  dispossessed 
Brown,  and  having  failed  to  do  so,  he  made  himself 
and  his  sureties  liable.      (Long  v.  Neville,  29  Cal. 

131-) 

§  678.    Who   bound   by   judgment   in   ejectment. 

If  a  defendant  in  ejectment  conveys  the  land  pending 
litigation,  and  the  grantee  enters  upon  the  land  with 
or  without  notice  of  the  pending  suit,  he  is  not  only 
liable  to  be  dispossessed  by  the  writ  of  restitution, 
if  the  plaintifif  obtains  judgment,  but  is  also  bound 
by  the  judgment,  as  an  instrument  of  evidence,  to  the 


§  679  SHERIFS  AND  CONSTABLES.  424 

same  extent  as  it  would  have  been  binding  upon  his 
grantor  had  no  conveyance  been  made.  {Watson 
V.  Douling,  26  Cal.  125.) 

§  679.     Whom    the    sheriff   may    not   dispossess. 

A  sheriff  has  no  authority  by  virtue  of  a  writ  of  resti- 
tution to  remove  from  the  premises  described  in  the 
writ  persons  who  were  not  parties  nor  privies  to  the 
judgment  on  which  the  writ  was  issued  and  did  not 
enter  by  collusion  with  the  defendant  in  the  judg- 
ment pending  the  suit.  {Tevis  v.  Ellis,  25  Cal.  515; 
Archbishop  v.  Shipman,  69  Cal.  586,  11  Pac.  343; 
Irving  V.  Cunningham,  77  Cal.  52,  18  Pac.  878.) 
Where  the  owner  of  certain  real  estate,  who  was  not 
a  party  in  the  suit,  was  threatened  by  the  sheriff  with 
ejectment  from  his  land,  it  was  held  that  he  was  not 
entitled  to  an  injunction  against  the  sheriff.  The 
plaintiff  and  his  tenant  were  not  only  beyond  the 
reach  of  the  writ,  but  were  unaffected  by  the  judg- 
ment as  an  instrument  of  evidence,  and  therefore  had 
nothing  to  fear  from  either;  that  if  the  sheriff  inter- 
fered with  the  plaintiff's  possession  of  the  lots,  the 
writ  would  not  only  fail  as  a  justification,  but  would 
be  pertinent  to  convict  the  sheriff  of  an  act  of  official 
oppression.     {Tevis  v.  Ellis,  ante.) 

In  Watson  v.  Dowling,  26  Cal.  125,  the  court  held 
that  where  several  persons  are  owners  of  a  tract  of 
land  as  tenants  in  common,  and  the  interest  of  one 
passes  to  a  purchaser  under  execution  sale,  who 
brings  ejectment  against  the  execution  debtor  alone, 
and  recovers  judgment,  neither  the  other  tenants  in 
common  nor  the  grantees  who  purchase  and  enter 
upon  the  land  pending  the  suit,  can  be  dispossessed 
by  the  sheriff  by  virtue  of  the  writ  of  restitution. 


425  WRIT  OF  RESTITUTION.  §  680 

Parties  in  exclusive  possession  of  land  claiming  ad- 
versely, at  the  commencement  of  an  ejectment  suit  to 
w^hich  they  were  not  made  parties,  are  not  affected  by 
the  judgment  therein.  (McLeran  v.  McNamara,  60 
Cal.  610.) 

A  person  in  possession  of  the  demanded  premises 
at  the  time  of  the  commencement  of  the  action  to 
recover  possession  cannot  be  removed  under  a  writ 
issued  on  a  judgment  in  the  case  unless  he  is  made 
defendant  and  judgment  is  rendered  against  him  after 
the  court  acquires  jurisdiction  of  his  person.  (Ford 
V.  Doyle,  37  Cal.  346.) 

If  neither  the  tenant  nor  his  landlord  are  parties 
to  an  action  of  ejectment,  and  the  landlord  was  in 
possession  when  the  suit  was  commenced,  but  subse- 
quently leased  to  the  tenant,  the  tenant  cannot  right- 
fully be  removed  by  a  writ  of  restitution  issued  in 
such  action.     {Calderwood  v.  Pyser,  31  Cal.  333.) 

One  who  after  an  action  of  ejectment  has  been  com- 
menced enters  upon  the  demanded  premises,  but  does 
not  enter  under  the  defendant,  or  by  collusion  with 
him,  and  is  not  made  a  party  to  the  action,  cannot  be 
removed  by  virtue  of  a  writ  of  restitution  issued  on 
a  judgment  rendered  in  the  action.  (Mayo  v.  Sprout, 
45  Cal.  99.) 

§  680.  Who  may  be  removed.  A  party  and  her 
tenants  coming  into  possession  of  lands,  after  an  ac- 
tion brought  to  recover  possession,  under  a  prior  un- 
recorded deed  from  two  of  the  defendants  in  the 
action,  of  which  plaintiff  had  no  notice  when  the 
action  was  commenced,  were  properly  dispossessed 
under  a  writ  of  restitution  issued  on  a  judgment  for 
plaintiff  in  said  action.      (Ma\ne  v.  Jones,  34  Cal. 

483.) 


§§  681,682       SHERIFFS  AND  CONSTABLES.  426 

In  the  case  of  Sampson  v.  Ohleyer,  22  Cal.  200, 
pending  an  action  of  ejectment  against  a  tenant,  the 
latter  transferred  possession  to  his  landlord,  who  had 
actual  notice  of  and  defended  the  suit,  but  was  not 
made  a  party,  and  plaintiff  recovered  judgment;  it 
was  held  that,  under  the  writ  of  restitution  authorized 
by  the  judgment,  the  landlord  might  be  dispossessed 
and  that  in  ejectment  against  the  occupant  of  the 
premises,  a  judgment  of  recovery  binds  not  only  the 
defendant  but  all  persons  who  receive  possession  of 
the  premises  from  him  with  actual  notice  of  the  pend- 
ing suit. 

If  the  plaintiff  in  ejectment  dies  after  a  judgment 
in  his  favor  has  been  rendered,  a  wTit  of  restitution 
may  be  issued  on  the  judgment  at  the  instance  and 
for  the  benefit  of  his  successor  in  interest  in  the  prop- 
erty.    (Franklin  v.  Merida,  50  Cal.  289.) 

Under  a  writ  of  possession  against  the  husband,  his 
wife  should  be  dispossessed,  her  only  holding  being 
such  as  she  had  by  virtue  of  her  marital  relations  with 
the  defendant  in  the  writ.  (Huerstal  v.  Muir,  64 
C«/.  450,  2  Pac.  23') 

§681.  Notice  of  pending  suit.  The  twenty- 
seventh  section  of  the  Practice  Act  (California.  Code 
Civ.  Proc,  sec.  409),  relating  to  the  filing  of  lis  pen- 
dens, does  not  apply  to  actions  of  ejectment,  but  to 
proceedings  in  chancery,  the  purpose  of  which  is  to 
turn  equitable  estates  into  legal  ones,  or  to  enforce 
liens  upon  legal  estates.  (Watson  v.  Dowling,  26 
Cal.  125.) 

§  682.  An  evasion  of  process.  If  the  defendant, 
pending  an  action  against  him  to  recover  possession 


427  WRIT  OF  RESTITUTION.  §§  683-685 

of  land,  colludes  with  another  person  to  obtain  judg- 
ment against  him  for  possession,  and  to  be  placed  in 
possession  by  a  writ  of  restitution,  such  other  person 
must  go  out  under  a  writ  of  possession  against  the 
defendant.  He  will  not  be  protected  by  his  judgment 
if  it  was  collusively  obtained.  (Wetherbee  v.  Dunn, 
36  Cal.  147,  95  Am.  Dec.  166.)  < 

§  683.  Colorable  possession  of  land.  Where 
a  defendant  in  ejectment  has  taken  possession  of  land 
in  collusion  with  the  plaintifif  for  no  other  purpose 
than  to  afiford  such  plaintiff  a  pretext  to  take  pos- 
session under  a  writ  of  restitution,  such  pretended 
possession  will  be  disregarded.  (South  Beach  L. 
Association  v.  Christy,  ^i  Cal.  501.) 

§  684.  Possession  of  third  parties.  If  the  plain- 
tifif obtains  judgment  in  an  action  of  forcible  entry 
and  detainer,  but  does  not  obtain  possession  of  the 
property,  and  a  writ  of  restitution  is  not  issued,  and 
the  judgment  is  afterwards  reversed  and  the  action 
dismissed,  and  during  the  pendency  of  the  action 
third  parties  obtain  possession  of  the  property  by  col- 
lusion with  a  servant  of  the  defendant,  the  defendant 
is  not  entitled  to  a  writ  to  be  restored  to  possession  as 
against  these  third  parties.  (Bowers  v.  Cherokee 
Bob,  46  Cal.  280.) 

§  685.  When  mandamus  will  issue.  In  an  action 
for  a  forcible  and  unlawful  entry  and  detainer  of  a 
mine  against  a  corporation  and  C  and  V,  the  jury 
returned  a  verdict  of  guilty  as  to  C  and  V,  and  not 
guilty  as  to  the  corporation :  Held,  that  such  a  ver- 
dict is  conclusive  that  the  plaintifif  was  peaceably  in 


§  686  SHERIFFS  AND  CONSTABLES.  428 

actual  possession  of  the  premises  at  the  time  of  the 
entry;  that  unlawful  and  forcible  entry  on  his  pos- 
session was  made  by  the  defendants,  C  and  V,  and 
that  the  corporation  did  not  participate  in  the  tres- 
pass. The  peaceable  and  actual  possession  of  the 
plaintifif  is  incompatible  with  the  lawful  possession 
of  another;  and  such-  a  verdict  is  conclusive  against 
the  possession  of  the  corporation.  {Fremont  v.  Crip- 
pen,  10  Cal.  211,  70  Am.  Dec.  71 1.) 

Where  a  writ  of  restitution  has  been  awarded  in 
such  a  case,  and  the  sherifif  refuses  to  execute  the 
same,  on  the  ground  that  the  mine  is  in  the  possession 
of  certain  persons  not  parties  to  the  suit,  who  claim 
to  hold  under  the  corporation,  the  court  will  award 
a  peremptory  mandamus  against  the  sherifTf  to  com- 
pel him  to  execute  the  writ. 

To  supersede  the  remedy  by  mandamus,  a  party 
must  not  only  have  a  specific  adequate  legal  remedy, 
but  one  competent  to  afiford  relief  upon  the  very  sub- 
ject-matter of  his  application. 

Neither  a  remedy  by  criminal  prosecution,  nor  by 
action  on  the  case  for  neglect  of  duty,  will  supersede 
that  by  mandamus,  since  it  cannot  compel  a  specific 
act  to  be  done,  and  is,  therefore,  not  equally  conven- 
ient, beneficial,  and  effectual.  (Fremont  v.  Crippen, 
10  Cal.  212,  70  Am.  Dec.  71 1.) 

§  686.    When  forcible  entry  will  not  lie  against 

sheriff.  An  action  under  the  act  concerning  forcible 
entries  and  unlawful  detainers  will  not  lie  against  a 
party  who  has  been  put  in  possession  by  a  sherifif  in 
good  faith,  by  virtue  of  a  writ  of  restitution,  even  if 
the  person  turned  out,  and  who  brings  the  action, 
was  one  whom  the  officer  could  not  lawfully  dis- 


429  WRIT  OF  RESTITUTION.  §§  687-689 

possess  by  virtue  of  the  writ.  (Janson  v.  Brooks,  29 
Cal.  214.)  Nor  is  the  sheriff  guilty  of  a  forcible 
entry  if  acting  in  good  faith  therein. 

§  687.  Must  show  right  of  occupancy.  A  person 
in  possession  of  land  where  a  writ  of  restitution  is 
served  is  presumed  to  hold  under  the  defendant  in 
the  action,  and  to  avoid  being  dispossessed  by  the 
writ  must  show  affirmatively  that  he  holds  by  a  right 
independent  and  paramount.  {Sampson  v.  Ohleyer, 
22  Cal.  200.) 

§  688.    When  sheriff  may  demand  an  indemnity 

bond.  When  a  sheriff  goes  to  execute  a  writ  of  pos- 
session issued  on  a  judgment  in  an  action  to  recover 
land,  if  he  finds  other  parties  in  possession  than  those 
named  in  the  complaint,  who  claim  that  they  are 
rightfully  in  possession,  not  in  privity  with  the  de- 
fendants, and  the  circumstances  are  such  that  a  rea- 
sonable doubt  exists  whether  the  sheriff  has  a  right 
to  turn  them  out,  the  sheriff  may  demand  indemnity, 
and,  unless  it  is  given,  may  refuse  to  execute  the  writ. 
This  is  the  law,  even  if  the  premises  are  specifically 
described  in  the  writ.  {Long  v.  Neville,  36  Cal.  455, 
95  Am.  Dec.  199.) 

If  a  sheriff  has  wrongfully  turned  a  person  out  of 
possession  of  land  under  a  writ  of  restitution,  he  will 
be  restored  by  the  court  to  the  possession,  on  motion 
made  for  that  purpose.  {South  Beach  Land  Assoc. 
V.  Christy,  41  Cal.  501 ;  Mayo  v.  Sprout,  45  Cal.  99.) 

§  689.  Error  in  writ.  In  an  action  of  ejectment, 
if  the  execution  correctly  refers  to  a  judgment  in  such 
manner  as  to  identify  it,  it  is  sufficient  to  justify  the 


§  689  SHERIFFS  AND  CONSTABLES.  43O 

sheriff  in  enforcing  it,  even  if  it  contains  an  error  in 
reciting  the  day  on  which  the  judgment  had  been 
rendered.     {Franklin  v.  Merida,  50  Cal.  289.) 


CHAPTER   XXV. 

ARRESTS. 

§  690.  Duty  to  arrest  offenders. 

§  691.  Rights  of  officers  to  seizure  in  criminal  cases. 

§  692.  Arrest  without  warrant. 

§  693.  When  warrant  must  be  shown. 

§  694.  Officer  making  arrest  may  summon  aid — Posse  comi- 

tatus. 

§  695.  Refusing  to  aid  officers. 

§  696.  How  arrest  is  made. 

§  697.  Breaking  outer  door  to  make  arrest. 

§  697a.  When  a  demand  for  entrance  necessary. 

§  698.  When  force  may  be  used. 

§  699.  When  doors  may  be  broken. 

§  700.  Use  of  unnecessary  force. 

§  701.  Taking  weapons  from  prisoners. 

§  702.  When  arrest  may  be  made  at  night. 

§  703.  When  arrest  cannot  be  made  at  night. 

§  704.  Nighttime  defined. 

§  705.  Name  of  defendant  in  warrant. 

§  706.  How  executed  in  another  county. 

§  707.  Rescuing  prisoners. 

§  708.  Taking  prisoner  before  magistrate. 

§  709.  Liability  for  delay. 

§  710.  Proceedings  before  magistrate. 

§  711.  Offense  triable  in  another  county. 

§  712.  Retaking  after  escape. 

§  713.  Jurisdiction  of  offenses. 

§  714.  Arrest  in  civil  actions. 

§  715.  Duty  on  arresting  insane  person. 

§  716.  Arrest  for  contempt  of  court. 

§  717.  Arrest  by  telegraph. 

§  718.  Electors  privileged  from  arrest — When. 

§  719.  The  legislature — Exemption  from  arrest. 

§  720.  Militia  exemptions  from  arrest. 


690,  691       SHERIFFS   AND    CONSTABLES.  432 


^721 
§  722 

§724 
§725 
§  726 

§727 
§728 

§729 
§730 


Exemption  of  witnesses  from  arrest. 

Arrest  for  fraud  and  torts,  etc. 

Prisoners  brought  from  other  counties  as  witnesses. 

When  prisoner  may  not  be  handcufifed. 

Service  of  bench  warrant. 

Making  arrest,  etc.,  without  authority. 

Refusing  to  arrest  criminals. 

Justifiable  homicide  in  making  arrest. 

Arrests  in  disorderly  houses. 

Carrying  concealed  weapons — Who  is  not  a  traveler. 


§  690.  Duty  to  arrest  offenders.  It  is  the  duty 
of  the  sheriff  to  arrest  and  take  before  the  nearest 
magistrate  for  examination  all  persons  who  attempt 
to  commit  or  who  have  committed  a  public  offense. 
[California.  County  Govt.  Bill,  sec.  93;  Stats.  1893, 
P-  372.) 

§  691.  Rights  of  officers  to  seizure  in  criminal 
cases.  It  is  not  only  the  right,  but  the  duty,  of  an 
officer  making  an  arrest  to  take  from  the  prisoner 
not  only  stolen  goods,  but  any  articles  which  may  be 
of  use  as  proof  in  the  trial  of  the  offense  with  which 
the  prisoner  is  charged.  (Wharton's  Criminal  Plead- 
ing and  Practice,  sees.  60,  61.)  He  may  take  from 
the  prisoner  any  articles  of  property  which  it  is 
presumable  may  furnish  evidence  against  him. 
(i  Bishop's  New  Criminal  Procedure,  sec.  210.) 
This  right  of  sequestration  is  plain,  notwithstanding 
the  property  may  be  claimed  by  a  third  party;  and 
stolen  goods  may  be  held  as  against  the  owner  if 
necessary  for  use  as  evidence,  however  clear  the  title 
of  the  claimant  may  be.  {Ex  parte  Hum,  92  Ala. 
102,  25  Am.  St.  Rep.  23,  9  So.  515,  13  L.  R.  A.  120; 
Closson  v.  Morrison,  47  A^.  H.  482,  93  Am.  Dec. 


433 


ARREST.  §  691 


459;  Commercial  Exchange  Bank  v.  McLeod,  65 
Iowa,  665,  54  Am.  Rep.  36,  19  A^.  JV .  329,  22  N.  IF. 
919;  Woo/folk  V.  *S/«/^,  81  G«.  551,  8  S.  E.  724.) 

In  Newberry  v.  Carpenter  the  trial  court  ordered 
that  a  steam  engine,  boilers,  and  materials  incident 
to  an  explosion,  for  which  the  engineer  was  arrested 
for  manslaughter,  be  taken  into  the  custody  of  the 
police  department  as  evidence,  and  the  supreme  court 
decided  that  the  order  was  without  authority  of  law. 
Chief  Justice  McGrath  dissented,  and  said,  in  part: 

"The  right  of  an  officer  to  pursue  a  fleeing  criminal 
in  and  upon  any  premises,  and  into  any  dwelling, 
does  not  depend  upon  the  statute.  There  is  no  statute 
which  authorizes  an  officer  to  take  from  a  prisoner 
such  evidence  of  guilt  as  may  be  found  on  the  person 
— the  bloody  knife,  the  revolver  with  an  empty  cham- 
ber, garments  stained  with  blood,  the  shoe  or  boot 
which  fits  the  track,  the  coat  with  the  missing  button, 
the  knife  with  the  broken  blade,  the  hat  found  at  the 
scene  of  the  crime.  Such  taking  and  use  do  not  vio- 
late the  rule  that  the  prisoner  shall  not  be  compelled 
to  furnish  evidence  against  himself. 

"The  right  to  the  possession  and  enjoyment  of 
property  must  be  subordinated  to  the  law  of  overrul- 
ing necessity.  It  is  subject  to  the  necessary  burdens 
and  restrictions  imposed  by  the  general  police  power 
of  the  state  in  order  to  secure  the  general  comfort, 
health,  security,  and  protection  of  the  citizen.  The 
limitations  upon  the  police  power  and  its  execution 
do  not  embrace  such  reasonable  judicial  orders  as 
may  be  found  necessary  in  the  course  of  the  admin- 
istration of  the  criminal  law  for  the  detention  of 
witnesses  and  the  preservation  of  evidence.  Police 
officers  must  be  given  a  reasonable  latitude  in  the 


§§  692,  693       SHERIFFS  AND  CONSTABLES.  434 

pursuit  of  ofifenders,  the  detection  of  crime,  and  the 
collection  of  evidence;  and  the  courts  vested  with 
jurisdiction  to  try  such  ofifenders  must  be  allowed 
to  exercise  a  reasonable  discretion  respecting  the  pres- 
ervation of  the  evidence  of  crime  in  matters  before 
them.  The  principle  of  the  rule  that  permits  the 
traveler  upon  the  highway  to  go  upon  the  abutting 
land  when  the  highway  is  impassable;  that  permits 
entry  upon  any  premises  in  case  of  fire,  and  the  de- 
struction of  any  property  if  deemed  necessary  to  stay 
the  conflagration;  that  permits  the  inspector  to  enter 
any  close, — extends  to  measures  necessary  for  the  pre- 
vention of  crime,  the  detection,  pursuit,  and  arrest 
of  ofifenders,  and  the  preservation  of  criminating  evi- 
dence. All  are  matters  not  alone  of  individual  in- 
terest, but  of  public  concern.". 

§  692.  Arrest  without  warrant.  A  sherifif  or  any 
other  peace  officer  may,  with  or  without  a  warrant, 
arrest  a  person  under  the  following  conditions: — 

"i.  For  a  public  ofifense  committed  or  attempted 
in  his  presence. 

"2.  When  a  person  arrested  has  committed  a  fel- 
ony, although  not  in  his  presence. 

"3.  When  a  felony  has,  in  fact,  been  committed, 
and  he  has  reasonable  cause  for  believing  the  per- 
son arrested  to  have  committed  it. 

"4.  On  a  charge  made,  upon  a  reasonable  cause, 
of  the  commission  of  a  felony  by  the  party  arrested. 

"5.  At  night,  when  there  is  reasonable  cause  to 
believe  that  he  has  committed  a  felony."  (Califor- 
nia.  Pen.  Code,  sec.  836.) 

§  693.    When  warrant  must  be  shown.     "If  the 

person  making  the   arrest  is   acting  under  the  au- 


435  ARREST.  §§  694-696 

thority  of  a  warrant,  he  must  show  the  warrant,  if 
required."     {California.     Pen.  Code,  sec.  842.) 

§  694.    Officer  making   arrest  may  sumnion  aid 

— Posse  comitatus.  An  officer,  or  any  person  mak- 
ing an  arrest,  may  orally  summon  as  many  persons 
as  he  deems  necessary  to  aid  him  therein.  {Califor- 
nia.   Pen.  Code,  sec.  150.) 

§  695.  Refusing  to  aid  officers.  ^' Every  male 
person  above  eighteen  years  of  age  who  neglects  or 
refuses  to  join  the  posse  comitatus  or  power  of  the 
county,  by  neglecting  or  refusing  to  aid  and  assist 
in  taking  or  arresting  any  person  against  whom  there 
may  be  issued  any  process,  or  by  neglecting  to  aid 
and  assist  in  retaking  any  person  who,  after  being 
arrested  or  confined,  may  have  escaped  from  such 
arrest  or  imprisonment,  or  by  neglecting  or  refusing 
to  aid  and  assist  in  preventing  any  breach  of  the 
peace,  or  the  commission  of  any  criminal  offense, 
being  thereto  lawfully  required  by  any  sheriff,  deputy 
sheriff,  coroner,  constable,  judge  or  justice  of  the 
peace  or  other  officer  concerned  in  the  administration 
of  justice,  is  punishable  by  fine  of  not  less  than  fifty 
nor  more  than  one  thousand  dollars."  {California. 
Pen.  Code,  sec.  150.) 

§  696.  How  arrest  is  made.  "The  person  mak- 
ing the  arrest  must  inform  the  person  to  be  arrested 
of  the  intention  to  arrest  him,  of  the  cause  of  the 
arrest,  and  the  authority  to  make  it,  except  when  the 
person  to  be  arrested  is  actually  engaged  in  the  com- 
mission of  or  an  attempt  to  commit  an  offense,  or  is 
pursued  immediately  after  its  commission,  or  after  an 
escape."     {California.    Pen  Code,  sec.  ^^i.) 


§§  ^97?  ^97^      SHERIFFS  AND  CONSTABLES.  436 

§  697.    Breaking  outer  door  to  make  arrest.     A 

sheriff  or  other  officer  authorized  to  execute  criminal 
process  may  lawfully  break  open  the  door  of  the 
house  wherein  the  person  dwells  whose  personal  ar- 
rest is  directed  by  the  writ,  and  enter  and  search  the 
dwelling  to  find  the  offender;  and  if  hindered  or 
obstructed  by  other  persons  in  his  attempt  to  make 
such  entrance  and  search,  they  would  be  guilty  of 
the  offense  for  which  the  defendants  in  this  case  have 
been  indicted,  although  at  the  time  of  such  attempt- 
ed entry  and  search  and  obstruction  the  accused  party 
may  not  have  been  in  the  dwelling,  and  though  there- 
fore such  entry  and  search  may  not  have  been  neces- 
sary to  make  the  arrest.  The  right  to  break  open  the 
outer  door  to  make  the  entrance,  of  course,  includes 
the  right  to  break  open  the  doors  of  the  different 
rooms  and  chambers  in  the  house  to  make  a  thorough 
search  throughout  the  premises;  and  though  the  de- 
fendant in  the  process  be  not  found  or  shown  to  be 
in  the  place  of  his  dwelling  at  the  time,  yet  such 
entrance  and  search  of  the  officer,  having  valid  crim- 
inal process  in  his  hands,  would  not  therefore  be 
unlawful,  or  make  him  a  trespasser;  but  to  obstruct 
the  officer  in  such  case  would  be  unlawful,  and  the 
parties  making  the  obstruction  would  subject  them- 
selves therefor  to  indictment  and  punishment  accord- 
ing to  law.  (6  Bac.  Ahr.,  i  Am.  Ed.  171 ;  Hawkins 
v.  Commonwealth  (Ky.  Ct.  of  App.).,  14  B.  Monroe, 
395,  61  Am.  Dec.  147.) 

§  697a.     When  demand  for  entrance  necessary. 

It  is  true  that  with  civil  instead  of  criminal  process 
in  his  hands,  whether  the  state  or  a  private  person 
be  the  plaintiff  in  the  writ,  and  though  it  authorize 


437  ARREST.  §§  698,  699 

the  arrest  of  the  defendant,  the  sheriflf  cannot  break 
open  the  outer  door  of  his  dwelling  without  first  hav- 
ing requested  the  door  to  be  opened,  and  at  the  same 
time  disclosing  the  purpose  of  his  request;  but  the 
rule  is  different  with  regard  to  criminal  or  penal 
process  requiring  the  capture  and  arrest  of  the  al- 
leged offender.  The  fact  that  the  house  entered  and 
searched  is,  at  the  time,  the  place  of  the  dwelling 
of  the  defendant  in  the  writ  gives  sufficient  warrant 
to  the  sheriff,  though  it  be  not  known  to  him  cer- 
tainly whether  the  offender  be  or  not  then  in  the 
house  or  be  found  therein,  and  the  law  does  not  re- 
quire that  the  officer  should  first  signify  his  business 
and  demand  admission  before  entering  and  searching, 
for  such  disclosure  of  his  purpose  and  demand  of 
entrance  would  in  many  cases  defeat  the  very  object 
in  view,  by  giving  the  offender  notice  of  his  danger 
and  an  opportunity  of  effecting  his  escape.  {Haw- 
kins V.  Commonwealth  {Ky.  Ct.  of  App.)^  14  B. 
Monroe,  395,  61  Am.  Dec.  147.) 

§  698.  When  force  may  be  used.  "When  the 
arrest  is  being  made,  by  an  officer  under  the  authority 
of  a  warrant,  after  information  of  the  intention  to 
make  the  arrest,  if  the  person  to  be  arrested  either 
flees  or  forcibly  resists,  the  officer  may  use  all  neces- 
sary means  to  effect  the  arrest."  (California.  Pen. 
Code,  sec.  843.) 

§  699.  When  doors  may  be  broken.  "To  make 
the  arrest,  a  private  person,  if  the  offense  be  a  felony, 
and  in  all  cases  a  peace  ofiicer,  may  break  open  the 
door  or  window  of  the  house  in  which  the  person 
to  be  arrested  is,  or  in  which  they  have  reasonable 


§  700  SHERIFFS  AND  CONSTABLES.  438 

grounds  for  believing  him  to  be,  after  having  de- 
manded admittance  and  explained  the  purpose  for 
which  admittance  is  desired."  {California.  Pen. 
Code,  sec.  844.) 

§  700.  Use  of  unnecessary  force.  An  officer 
who,  in  making  a  lawful  arrest,  uses  excessive  and 
unnecessary  force,  is  liable  upon  his  official  bond 
for  damages  thereby  caused  to  the  person  arrested. 
In  Towle  v.  Matheus  et  al.,  130  Cal.  574,  62  Pac. 
1064,  in  an  action  against  the  constable  of  Wilming- 
ton Township,  Los  Angeles  County,  and  his  bonds- 
men to  recover  damages  for  injuring  the  person  of 
plaintiflf  while  arresting  him,  the  trial  was  by  the 
court  without  a  jury  and  plaintiff  had  judgment, 
from  which  defendants  appealed.  The  arrest  was 
made  in  the  town  of  San  Pedro,  and  the  court  found 
that  at  the  time  "plaintiff  was  willfully  and  mali- 
ciously disturbing  the  peace  and  quiet  of  the  neigh- 
borhood," etc.;  that  in  order  "to  stop  his  disturb- 
ance," the  constable,  defendant  Matheus,  and  his 
deputy,  one  Mathews,  seized  hold  of  the  plaintiff 
and  placed  iron  nippers  or  handcuffs  on  plaintiff's 
wrists;  that  when  they  attempted  to  arrest  plaintiff 
"he  violently  and  with  force  resisted  said  arrest," 
and  in  order  to  make  the  arrest  the  constable  called 
upon  the  bystanders  to  assist  him  and  his  deputy, 
and  several  persons  responded  to  the  call  and  gave 
their  assistance;  "that  the  plaintiff  struck  said 
Matheus  in  the  face  with  his  fist,  whereupon  said 
Matheus  then  violently  struck  plaintiff  over  the  head 
with  a  pistol  covered  with  a  scabbard,  thereby  cut- 
ting plaintiff's  scalp  and  caused  it  to  bleed  pro- 
fusely, and  the  said  Mathews,  deputy,  drew  his  pistol 


439  ARREST.  §§701,702 

and  willfully  shot  plaintiff  in  the  back.  That  said 
Matheus  and  Mathews,  assisted  by  other  persons, 
took  plaintiff  to  the  city  jail."  The  arrest  was  made 
for  a  breach  of  the  peace  committed  in  the  sight  of 
the  officers  and  without  a  warrant,  and  at  the  time 
plaintiff"  was  a  stranger  to  the  constable  and  his 
deputy,  and  whatever  was  done  by  the  officer  was 
"by  virtue  of  and  under  color  of  their  said  offices." 
The  court  further  found,  that  while  making  said 
arrest,  the  defendants  used  more  force  than  was  nec- 
essary. The  wound  inflicted  by  the  pistol  was  severe, 
and  disabled  plaintiff  from  pursuing  his  occupation 
for  some  time.  The  supreme  court  sustained  the 
lower  court. 

§  701.  Taking  weapons  from  prisoners.  "Any 
person  making  an  arrest  may  take  from  the  person 
arrested  all  offensive  weapons  which  he  may  have 
about  his  person,  and  must  deliver  them  to  the  magis- 
trate before  whom  he  is  taken."  {California.  Pen. 
Code,  sec.  846.) 

The  instruments,  devices,  or  tokens  used  in  the 
commission  of  a  crime  are  competent  and  legitimate 
evidence  in  the  trial  of  the  accused,  and  the  taking  of 
them  from  his  person  by  an  officer  who  has  arrested 
him  upon  a  charge  of  having  committed  the  crime 
is  not  an  illegal  seizure;  nor  is  the  search  of  his 
person  for  such  instruments  an  unreasonable  search 
within  the  meaning  of  the  constitutional  provision 
against  unreasonable  search.  (State  v.  Edwards, 
51  W.  Va.  220,  41  S.  E.  429,  59  L.  R.  A.  465.) 

§  702.    When  arrest  may  be  made  at  night.     "If 

the  offense  charged  is  a  felony,  the  arrest  may  be 


§§  703-706       SHERIFFS  AND  CONSTABLES.  44O 

made  on  any  day,  and  any  time  of  the  day  or  night." 
{California.     Pen.  Code,  sec.  840.) 

§  703.    When   arrest   cannot  be   made   at   night. 

If  it  is  a  misdemeanor,  the  arrest  cannot  be  made  at 
night,  unless  upon  the  direction  of  the  magistrate, 
indorsed  upon  the  warrant,  except  when  the  offense 
is  committed  in  the  presence  of  the  arresting  officer. 
{California.    Pen.  Code,  sec.  840.) 

§  704.  Nighttime  defined.  The  phrase  "night- 
time," as  used  herein,  means  the  period  between  sun- 
set and  sunrise.     {California.    Pol.  Code,  sec.  3260.) 

§  705.  Name  of  defendant  in  warrant.  "The 
warrant  must  specify  the  name  of  the  defendant,  or, 
if  it  is  unknown  to  the  magistrate,  the  defendant 
may  be  designated  therein  by  any  name."  {Califor- 
nia.    Pen.  Code,  sec.  815.) 

§  706.     How    executed    in    another    county.      If 

the  defendant  is  in  another  county  than  that  in  which 
the  warrant  is  issued,  it  may  be  served  therein  upon 
the  written  direction  of  a  magistrate  of  the  county 
in  which  it  is  to  be  served,  indorsed  upon  the  warrant, 
signed  by  him,  with  his  name  of  office,  and  dated  at 
the  county,  city  or  town  where  it  is  made,  to  the 
following  efifect:  "This  warrant  may  be  executed  in 

the  county  of "   (naming  the  county).     Such 

indorsement  "cannot,  however,  be  made,  unless  the 
warrant  be  accompanied  with  a  certificate  of  the 
clerk  of  the  county  where  it  was  issued,  under  seal, 
as   to   the   official   character  of   the  magistrate;   or 


441  ARREST.  §§  707,  708 

unless  upon  the  oath  of  a  credible  witness,  in  writing, 
indorsed  on  or  annexed  to  the  warrant,  proving  the 
handwriting  of  the  magistrate  by  whom  it  was 
issued."     (California.    Pen.  Code,  sees.  819,  820.) 

§  707.  Rescuing  prisoners.  Every  person  who 
rescues  or  attempts  to  rescue,  or  aids  another  person 
in  rescuing  or  attempting  to  rescue,  any  prisoner  from 
any  officer  or  person  having  him  in  lawful  custody, 
is  punishable  under  section  loi  of  the  Penal  Code 
of  California.  But  one  who,  without  violence,  as- 
sists a  person  who  is  confined  without  authority  or 
process  of  law  to  depart  from  his  place  of  confine- 
ment, is  not  guilty  of  the  crime  of  assisting  a  prisoner 
to  escape.  (People  v.  Ah  Teung,  92  Cal.  421,  28 
P(^c.  S77^  IS  L.  R.  A.  421.) 

§  708.    Taking  prisoner  before  magistrate.      "If 

the  oflfense  charged  is  a  felony,  the  officer  making 
the  arrest  must  take  the  defendant  before  the 
magistrate  who  issued  the  warrant,  or  some  other 
magistrate  of  the  same  county."  (California.  Pen. 
Code,  sec.  821.) 

"If  the  ofifense  charged  is  a  misdemeanor,  and  the 
defendant  is  arrested  in  another  county,  the  officer 
must,  upon  being  required  by  the  defendant,  take 
him  before  a  magistrate  in  that  county,  who  must 
admit  the  defendant  to  bail,  and  take  bail  from  him 
accordingly."     (California.    Pen.  Code,  sec.  ^22.) 

"On  taking  the  bail,  the  magistrate  must  certify 
that  fact  on  the  warrant,  and  deliver  the  warrant  and 
undertaking  of  bail  to  the  officer  having  charge  of 
the  defendant.  The  officer  must  then  discharge  the 
defendant  from  arrest,  and  must,  without  delay,  de- 


§§709-711       SHERIFFS  AND  CONSTABLES.  442 

liver  the  warrant  and  undertaking  to  the  clerk  of  the 
court  at  which  the  defendant  is  required  to  appear." 
{California.     Pen.  Code,  sec.  823.) 

"If,  on  the  admission  of  the  defendant  to  bail,  the 
bail  is  not  forthwith  given,  the  officer  must  take  the 
defendant  before  the  magistrate  who  issued  the  war- 
rant, or,  in  case  of  his  absence  or  inability  to  act, 
before  the  nearest  or  most  accessible  magistrate  in 
the  same  county,  and  must  at  the  same  time  deliver 
to  the  magistrate  the  warrant,  with  his  return  thereon 
indorsed  and  subscribed  by  him."  "The  defendant 
must  in  all  cases  be  taken  before  the  magistrate  with- 
out unnecessary  delay."  {California.  Pen.  Code, 
sees.  824,  825.) 

§  709.  Liability  for  delay.  "Every  public  offi- 
cer or  other  person,  having  arrested  any  person  on  a 
criminal  charge,  who  willfully  delays  to  take  such 
person  before  a  magistrate  having  jurisdiction,  to 
take  his  examination,  is  guilty  of  a  misdemeanor." 
{California.     Pen.  Code,  sec.  145.) 

§  710.    Proceedings  before   magistrate.      "If  the 

defendant  is  brought  before  a  magistrate  other  than 
the  one  who  issued  the  warrant,  the  depositions  on 
which  the  warrant  was  granted  must  be  sent  to  that 
magistrate,  or,  if  they  cannot  be  procured,  the  prose- 
cutor and  his  witnesses  must  be  summoned  to  give 
their  testimony  anew."  {California.  Pen.  Code, 
sec.  826.) 

§  71 1.  Offense  triable  in  another  county.  "When 
an  information  is  laid  before  a  magistrate  of  the 
commission  of  a  public  ofifense  triable  in  another 


443  ARREST.  §§712,713 

county  of  the  state,  but  showing  that  the  defendant  is 
in  the  county  where  the  information  is  laid,  .  .  .  the 
warrant  must  require  the  defendant  to  be  taken  be- 
fore the  nearest  or  most  accessible  magistrate  of  the 
county  in  which  the  offense  is  triable,  and  the  depo- 
sitions of  the  informant  or  prosecutor,  and  of  the 
witnesses  who  may  have  been  produced,  must  be  de- 
livered by  the  magistrate  to  the  officer  to  whom  the 
warrant  is  delivered."  The  officer  must  then  take 
the  defendant  and  the  papers  to  such  magistrate, 
with  his  return  indorsed  on  the  warrant.  If  the 
offense  in  such  case  is  a  misdemeanor,  the  officer 
must,  if  the  defendant  require  it,  take  him  before  the 
magistrate  of  the  county  in  which  the  warrant  was 
issued,  who  must  admit  him  to  bail.  (California. 
Pen.  Code,  sees.  827-829.) 

§712.  Retaking  after  escape.  If  a  person  ar- 
rested escape,  or  is  rescued,  the  officer  may  imme- 
diately pursue  and  retake  him  at  any  time  and  any 
place  within  the  state.  To  retake  an  escaped  prisoner, 
the  officer  pursuing  may  break  open  an  outer  or  inner 
door  or  window,  if,  after  notice  of  his  intention,  he 
is  refused  admittance.  {California.  Pen.  Code, 
sees.  854,  855.)  If  the  prisoner  escape  into  another 
state,  the  officer  cannot  retake  him  except  upon  a 
requisition  from  the  governor  of  the  state  from  which 
he  escaped. 

§713.  Jurisdiction  of  offenses.  When  a  public 
offense  is  committed  on  the  boundary  of  two  or  more 
counties  in  California  or  within  five  hundred  yards 
thereof,  the  jurisdiction  is  in  either  county.  When 
an  offense  is  committed  "on  board  a  vessel  navigat- 


§§714)715       SHERIFFS  AND  CONSTABLES.  444 

ing  a  river,  bay,  slough,  lake,  or  canal,  or  lying 
therein,  in  the  prosecution  of  her  voyage,  the  juris- 
diction is  in  any  county  through  which  the  vessel  is 
navigated  in  the  course  of  her  voyage,  or  in  the 
county  where  the  voyage  terminates;  and  when  the 
ofifense  is  committed  in  this  state,  on  a  railroad  train 
or  car  prosecuting  its  trip,  the  jurisdiction  is  in  any 
county  through  which  the  train  or  car  passes  in  the 
course  of  her  trip,  or  in  the  county  where  the  trip 
terminates.  When  the  ofifense,  either  of  bigamy  or 
incest,  is  committed  in  one  county  and  the  defendant 
is  apprehended  in  another,  the  jurisdiction  is  in 
either  county.  When  property  taken  in  one  county 
by  burglary,  robbery,  larceny,  or  embezzlement,  has 
been  brought  into  another,  the  jurisdiction  of  the 
ofifense  is  in  either  county;  but  if,  at  any  time  before 
the  conviction  of  the  defendant  in  the  latter,  he  is 
indicted  in  the  former  county,  the  sherifif  of  the  latter 
county  must,  upon  demand,  deliver  him  to  the  for- 
mer." The  jurisdiction  on  violation  of  the  law  relat- 
ing to  prize-fights  is  in  any  county  in  which  any  act 
is  done  toward  the  commission  of  the  ofifense,  into, 
out  of,  or  through  which  the  ofifender  passed  to  com- 
mit the  ofifense,  or  where  the  ofifender  is  arrested. 
{California.     Pen.    Code,  sees.   782,   783,   785,   786, 

795-) 

§  714.  Arrest  in  civil  actions.  Arrest  in  civil 
actions  is  treated  in  this  work  in  the  chapter  on  "Ar- 
rest and  Bail,"  ante. 

§715.    Duty  on  arresting  insane  person.     It  is  the 

duty  of  the  sherifif,  immediately  upon  arresting  any 
person  charged  with  being  insane,  to  notify  the  dis- 


445 


ARREST.  §§716-718 


trict  attorney  of  the  county  in  which  the  arrest  is 
made.     (California.    Stats.  1889,  p.  329.) 

§716.  Arrest  for  contempt  of  court.  When  a 
party  to  a  divorce  case  is  ordered  imprisoned  for 
contempt  in  failing  to  pay  alimony,  the  sheriff  can- 
not place  the  person  under  arrest  until  the  commit- 
ment has  been  placed  in  his  hands. 

§717.  Arrest  by  telegraph.  "A  justice  of  the 
supreme  court,  or  a  judge  of  a  superior  court,  may, 
by  an  indorsement  under  his  hand  upon  a  warrant  of 
arrest,  authorize  the  service  thereof  by  telegraph, 
and  thereafter  a  telegraphic  copy  of  such  warrant 
may  be  sent  by  telegraph  to  one  or  more  peace  offi- 
cers, and  such  copy  is  as  effectual  in  the  hands  of 
any  officer,  and  he  must  proceed  in  the  same  manner 
under  it  as  though  he  held  an  original  warrant 
issued  by  the  magistrate  making  the  indorsement." 

"Every  officer  causing  telegraphic  copies  of  war- 
rants to  be  sent,  must  certify  as  correct,  and  file  in 
the  telegraph  office  from  which  such  copies  are  sent, 
a  copy  of  the  warrant  and  indorsement  thereon,  and 
must  return  the  original  with  a  statement  of  his  action 
thereunder."      {California.      Pen.    Code,   sees.    850, 

851.) 

§  718.    Electors — When    privileged    from    arrest. 

"Electors  are  privileged  from  arrest,  except  for  an 
indictable  ofifense,  during  their  attendance  on  the 
election,  and  in  going  to  and  returning  from  the 
same."  (California.  Pol.  Code,  sec.  1069;  Consti- 
tution, art.  II,  sec.  2.     See,  also,  sec.  162,  ante.) 


§§719-722       SHERIFFS  AND  CONSTABLES.  446 

§719.    The  legislature — Exemption  from  arrest. 

"Members  of  the  legislature  shall,  in  all  cases  except 
treason,  felony  and  breach  of  the  peace,  be  privileged 
from  arrest,  and  they  shall  not  be  subject  to  any 
civil  process  during  the  session  of  the  legislature,  nor 
for  fifteen  days  next  before  the  commencement  and 
after  the  termination  of  each  session."  {California. 
Constitution,  art  IV,  sec.  2.    See,  also,  sec.  162,  ante.) 

§  720.  Militia  exemptions  from  arrest.  "No  per- 
son belonging  to  the  military  forces  is  subject  to 
arrest  on  civil  process  while  going  to,  remaining 
at,  or  returning  from,  any  place  at  which  he  may  be 
required  to  attend  for  military  duty."  (California. 
Pol.  Code;  sec.  2093.)  "No  person  shall  be  im- 
prisoned for  a  militia  fine  in  time  of  peace."  [Cali- 
fornia. Constitution,  art.  I,  sec.  15.  See,  also,  sec. 
162,  ante.) 

§  72 1 .     Exemption    of    witnesses     from    arrest. 

"Every  person  who  has  been,  in  good  faith,  served 
with  a  subpoena  to  attend  as  a  witness  before  a  court, 
judge,  commissioner,  referee  or  other  person,  in  a 
case  where  the  disobedience  of  the  witness  may  be 
punished  as  a  contempt,  is  exonerated  from  arrest 
in  a  civil  action  while  going  to  the  place  of  attend- 
ance, necessarily  remaining  there  and  returning 
therefrom."  {California.  Code  Civ.  Proc,  sec. 
2067.    See,  also,  sec.  162,  ante.) 

§  722.  Arrest  for  fraud  and  torts,  etc.  "No  per- 
son can  be  arrested  for  debt  in  any  civil  action,  on 
mesne  or  final  process,  except  in  cases  of  fraud,  nor 
in  civil  actions  for  torts,  except  in  cases  of  willful 
injury  to  persons  or  property."  {California.  Con- 
stitution, art.  I,  sec.   15.) 


447  ARREST.  §§  723,  724 

§  723.  Prisoners  brought  from  other  counties  as 
witnesses.  In  California,  when  it  is  necessary  to 
have  a  person  imprisoned  in  the  state  prison  brought 
before  any  court,  or  a  person  imprisoned  in  a  county 
jail  brought  before  a  court  sitting  in  another  county, 
an  order  for  that  purpose  may  be  made  by  the  court 
and  executed  by  the  sherifif  of  the  county  where  it 
is  made ;  or  his  deposition  may  be  taken.  {Pen.  Code, 
sees.  1333,  1346.) 

§  724.    When  prisoner  may  not  be  handcuffed. 

By  the  common  law,  a  prisoner  is  entitled  to  appear 
for  trial,  upon  his  own  plea  of  not  guilty,  free  from 
all  manner  of  shackles  or  bonds,  unless  there  is 
danger  of  his  escape.  {People  v.  Harrington,  42 
Cal.  165,  10  Am.  Rep.  296.) 

The  mere  fact  that  a  prisoner  brought  before  the 
examining  magistrate  remains  handcuffed  during  the 
proceedings,  and  in  that  condition  waives  a  prelimi- 
nary examination,  will  not  support  a  plea  in  abate- 
ment to  the  information  of  the  ofifense.  {State  v. 
Lewis,  19  Kan.  260,  27  Am.  Rep.  113.)  A  different 
rule  is  laid  down  in  the  California  Reports.  In 
People  V.  Harrington,  42  Cal.  165,  10  Am.  Rep. 
296,  the  court  observed:  "In  my  opinion,  any  order 
or  action  of  the  court,  which  without  evident  neces- 
sity imposes  physical  burdens,  pains,  and  restraints 
upon  a  prisoner  during  the  progress  of  his  trial,  in- 
evitably tends  to  confuse  and  embarrass  his  mental 
faculties,  and  thereby  materially  to  abridge  and  prej- 
udicially affect  his  constitutional  rights  of  defense; 
and  especially  would  such  physical  bonds  and  re- 
straints in  like  manner  materially  impair  and  prej- 
udicially affect  his  statutory  privilege  of  becoming  a 


§§  7^^-7'^7        SHERIFFS  AND  CONSTABLES.  448 

competent  witness  and  testifying  in  his  own  behalf." 
The  judgment  was  reversed  on  account  of  the  pris- 
oner's being  tried  in  shackles,  in  spite  of  his  request 
to  be  unshackled. 

§  725.  Service  of  bench  warrant.  The  bench 
warrant,  for  the  arrest  of  a  person  under  indictment 
or  presentment,  may  be  served  in  any  county,  and 
need  not  be  indorsed  by  a  magistrate  of  that  county. 
When  the  offense  is  not  punishable  with  death,  the 
officer  must,  if  required,  take  the  defendant  before 
a  magistrate  in  the  county  in  which  it  is  issued,  or 
in  which  he  is  arrested,  for  the  purpose  of  giving 
bail.  But  if  the  ofifense  is  punishable  with  death,  the 
officer  must  deliver  him  into  custody,  according  to 
the  command  of  the  bench  warrant.  (California. 
Pen.  Code,  sees.  934-936,  979-986,  1 195-1 199.) 

For  arrest  after  presentment  in  California,  see 
sections  935,  936,  979-986  of  the  Penal  Code;  and 
for  arrest  after  judgment,  sections  1197-1199  of  the 
Penal  Code. 

§  726.     Making  arrests,   etc.,   without  authority. 

"Every  public  officer,  or  person  pretending  to  be  a 
public  officer,  who,  under  the  pretense  or  color  of 
any  process  or  other  legal  authority,  arrests  any  per- 
son or  detains  him  against  his  will,  or  seizes  or  levies 
upon  any  property,  or  dispossesses  any  one  of  any 
lands  or  tenements,  without  a  regular  process  or  other 
lawful  authority  therefor,  is  guilty  of  a  misde- 
meanor."    (California.    Pen.  Code,  sec.  146.) 

§  727.  Refusing  to  arrest  criminals.  "Every 
sheriff,  coroner,  keeper  of  a  jail,  constable  or  other 


449  ARREST.  §§  728,  729 

peace  officer,  who  willfully  refuses  to  receive  or  ar- 
rest any  person  charged  with  a  criminal  ofifense,  is 
punishable  by  fine  not  exceeding  five  thousand  dol- 
lars, and  imprisonment  in  the  county  jail  not  exceed- 
ing five  years."  {California.  Pen.  Code,  sec.  142.) 
An  officer,  nevertheless,  should  be  guarded  as  to 
receiving  persons  as  prisoners  without  a  warrant  or 
commitment. 

§  728.    Justifiable  homicide  in  making  an  arrest. 

Homicide  is  justifiable  when  committed  by  public 
officers  and  those  acting  by  their  command  in  their 
aid  and  assistance,  when  necessarily  committed  in 
retaking  felons  who  have  been  rescued  or  have 
escaped,  or  when  necessarily  committed  in  arresting 
persons  charged  with  felony,  and  who  are  fleeing 
from  justice  or  resisting  such  arrest.  {California. 
Pen.  Code,  sec.   196.) 

§  729.  Arrests  in  disorderly  houses.  Every  per- 
son who  keeps  any  disorderly  house,  or  any  house  for 
the  purpose  of  assignation  or  prostitution,  or  any 
house  of  public  resort,  by  which  the  peace,  comfort, 
or  decency  of  the  immediate  neighborhood  is  habitu- 
ally disturbed,  or  who  keeps  any  inn  in  a  disorderly 
manner,  and  every  person  who  lets  any  apartment  or 
tenement,  knowing  that  it  is  to  be  used  for  the  pur- 
pose of  assignation  or  prostitution,  is  guilty  of  a  mis- 
demeanor.    {California.   Pen.  Code,  sec.  7,16.) 

A  house,  the  inmates  of  which  behave  so  badly 
as  to  become  a  nuisance  to  the  neighborhood,  is  es- 
teemed at  common  law  a  disorderly  house,  and  so  of 
one  which  is  kept  in  such  a  way  as  to  disturb  or  scan- 
dalize the  public  generally,  or  the  inhabitants  of  a 


§  730  SHERIFFS  AND  CONSTABLES.  450 

particular  neighborhood,  or  the  passers-by.  (2  Whar- 
ton's Criminal  Law,  yth  ed.,  sec.  2392;  5  Am.  & 
Eng.  Ency.  of  Law,  693;  State  v.  Wilson,  93  N.  C. 
60S.)  And  it  seems  that  a  complaint  for  keeping 
such  a  house  may  be  maintained  by  proof  that  only 
one  person  in  the  neighborhood  or  community  was 
disturbed  or  annoyed,  if  the  acts  done  were  of  such 
a  nature  as  tended  to  annoy  all  good  citizens.  {Com- 
monwealth V.  Hopkins,  133  Mass.  381,  43  Am.  Rep. 

527-) 

A  city  council  has  power  to  pass  such  an  ordinance, 

and  a  police  officer,  who  from  the  outside  of  a  house 

hears  a  disturbance,  or  is  made  aware  of  disorderly 

conduct  within  it,  may,  acting  in  good  faith,  enter 

the  house  and  lawfully  arrest  the  person  guilty  of 

such  conduct,   as  being  an  inmate  of  a  disorderly 

house,  for  the  offense  may  be  fairly  said  to  have  been 

committed  in  his  presence.     (Hawkins  v.  Sutton,  95 

Wis.  492,  60  Afn.  St.  Rep.  131,  70  A^.  W.  483.) 

§  ^2^.  Carrying  concealed  weapons  —  Who  is 
not  a  traveler.  The  supreme  court  of  Indiana,  in 
State  v.  Smith  (Oct.  9,  1901),  157  Ind.  241,  87  Am. 
St.  Rep.  205,  61  N.  E.  566,  has  decided  that  a  person 
going  from  his  home  by  rail  to  a  town  fifteen  miles 
distant  in  an  adjoining  county  to  attend  a  political 
meeting,  having  no  other  business,  and  returning 
home  from  such  meeting,  is  not  engaged  in  travel 
outside  ordinary  habits,  business,  or  duties,  and  at 
such  a  distance  from  home  as  takes  him  beyond  the 
circle  of  his  acquaintance,  among  strangers,  with 
whose  habits  and  character  he  is  not  familiar,  and 
hence  is  not  a  "traveler"  under  (statute)  punishing 
the  carrying  of  such  weapons  by  others  than  "trav- 


451  ARREST.  §730 

elers."  The  court  said:  "The  evil  sought  to  be 
remedied  by  said  section  was  the  insecurity  of  life 
caused  by  the  pernicious  habit  of  carrying  concealed 
weapons,  and  the  consequent  demoralization  of  so- 
ciety. The  word  'traveler,'  when  used  in  a  broad 
sense,  designates  one  who  travels  in  any  way,  distance 
not  being  material.  It  is  clear  that  the  legislature 
did  not  use  the  word  in  this  sense,  for  such  significa- 
tion would  destroy  the  very  purpose  for  which  the 
section  was  enacted,  by  licensing,  rather  than  sup- 
pressing, the  practice  of  carrying  concealed  weapons. 
It  is  evident,  therefore,  that  the  word  was  employed 
in  a  more  limited  sense,  and  was  intended  to  desig- 
nate a  person  traveling  at  least  such  a  distance  as  takes 
him  among  strangers,  with  whose  habits,  conduct, 
and  character  he  is  not  acquainted,  where  unknown 
dangers  may  exist  from  which  there  may  be  a  ne- 
cessity to  protect  himself  by  preparing  for  a  defense 
against  an  attack.  It  is  therefore  evident  that  appel- 
lant was  not  a  traveler  within  the  meaning  of  said 
section." 

One  may  be  guilty  of  carrying  a  concealed  weapon 
while  on  his  own  premises.  ( Carroll  v.  State,  28  Ark. 
99,  18  Am.  Rep.  538.)  Neither  by  the  letter  nor  by 
the  spirit  of  the  statute  prohibiting  the  carrying  of 
weapons  concealed  about  the  person  is  any  exception 
created  in  favor  of  place.  One  of  the  objects  of  the 
law  is  the  avoidance  of  bad  influences  which  the 
wearing  of  a  concealed  deadly  weapon  may  exert 
upon  the  wearer  himself,  and  which  in  that  way,  as 
well  as  by  the  weapon's  obscured  convenience  for  use, 
may  tend  to  the  insecurity  of  other  persons.  {Oivens 
V.  State,  31  Ala.  387;  State  v.  Reid,  i  Ala.  612,  35 
Am.  Dec.  44.) 


§  730  SHERIFFS  AND  CONSTABLES.  452 

The  mental  suggestions  which  proceed  from  con- 
stant contact  with  weapons  specially  adapted  to,  and 
usually  worn  for  the  purpose  of,  inflicting  bodily 
harm  to  persons  may  come  as  well  when  the  wearer 
is  in  his  domicile  as  elsewhere.  The  only  matter 
relied  on  to  acquit  the  defendant  is  that  he  was  in  his 
home  when  carrying  the  pistol  concealed  upon  his 
person,  and  that  until  the  time  of  his  arrest  he  was 
alone.  This  neither  avoids  the  operation  of  the  stat- 
ute nor  excuses  its  violation.  {Harmon  v.  State,  69 
Ala.  248;  Dunston  v.  State,  124  Ala.  89,  82  Am.  St. 
Rep.  152,  2j  So.  333.) 

Appellant  was  convicted  of  carrying  brass  knuckles, 
and  the  court  declared  its  knowledge  judicially  that 
brass  knuckles  may  be  composed  of  metal  other  than 
brass,  as  steel,  iron,  etc.,  and  tha^when  the  informa- 
tion charged  "brass  knuckles"  it  was  equivalent  to 
an  allegation  that  they  were  made  of  metal  or  a  hard 
substance.  {Louis  v.  State,  36  Tex.  Crim.  Rep.  52, 
61  Am.  St.  Rep.  832,  35  S.  W.  zil.) 


§  731 
^732 
^733 
§734 
§735 
§736 
^737 
§738 
§739 


CHAPTER    XXVI. 

HABEAS  CORPUS. 

Receipt  of  writ. 

Service  of  the  writ. 

Manner  of  service. 

The  return. 

Certificate  of  service  by  sheriff. 

Prisoner  held  by  United  States  court. 

Warrant  may  issue  instead  of  writ. 

Service  on  hoHdays. 

No  fees  chargeable. 


§731.  Receipt  of  writ.  Upon  receipt  by  the 
sheriff  of  a  writ  of  habeas  corpus  to  be  served  by  him, 
and  directed  to  another  person,  the  officer  should 
indorse  upon  it  the  time  of  its  reception  and  make 
and  retain  a  copy  of  the  writ.  Under  the  California 
practice,  if  it  is  directed  to  the  sheriff  or  other  minis- 
terial officer  of  the  court  out  of  which  it  issues,  it 
must  be  delivered  by  the  clerk  to  such  officer  without 
delay,  as  other  writs  are  delivered  for  service;  if  it 
is  directed  to  any  other  person,  it  must  be  delivered 
to  the  sheriff  for  service.  {California.  Pen.  Code, 
sec.  1478.) 

§  732.  Service  of  the  writ.  If  the  writ  be  placed 
in  the  hands  of  the  sheriff  for  service  upon  another 
person,  it  must  be  by  him  "served  upon  such  person 
by  delivering  the  same  to  him  without  delay.  If 
the  person  to  whom  the  writ  is  directed  cannot  be 
found,  or  refuses  admittance  to  the  officer  or  person 
serving  or  delivering  such  writ,  it  may  be  served  or 
delivered  by  leaving  it  at  the  residence  of  the  person 


§§  7?>2)  734       SHERIFFS  AND  COxXSTABLES.  454 

to  whom  it  is  directed,  or  by  affixing  it  to  some  con- 
spicuous place  on  the  outside  either  of  his  dwelling 
house  or  of  the  place  where  the  party  is  confined  or 
under  restraint."  (California.  Pen.  Code,  sec.  i^yS. 
See,  also,  the  next  section.) 

§  733.  Manner  of  service.  In  the  absence  of 
statutory  provision  as  to  the  manner  of  sersnce  of  the 
writ,  as  in  most  of  the  Pacific  states,  there  is  a  diver- 
sity of  opinion  among  attorneys  and  officers  as  to 
the  manner  in  which  this  writ  should  be  served — - 
whether  service  should  be  made  with  the  original 
writ  or  a  copy  thereof.  Section  1478  of  the  Penal 
Code  of  California  seems  to  require  the  service  to 
be  made  with  the  original  writ;  and  section  1479 
gives  weight  to  this  construction  by  providing  that,  if 
the  person  to  whom  the  writ  is  directed  refuses  after 
service  to  obey  the  same,  the  court  or  judge,  upon 
affidavit  (not  upon  any  return  of  the  officer  who 
served  the  writ),  must  issue  an  attachment  against 
such  person,  etc.  Under  the  old  common-law  prac- 
tice, the  original  writ  of  habeas  corpus  was  served 
upon  the  person  to  whom  it  was  directed.  The  same 
practice  is  followed  in  the  state  of  New  York,  the 
codes  of  which  state  were  closely  followed  by  the 
code  commissioners  of  California  in  codifying  the 
laws  of  this  state.  In  Utah  and  Oregon  the  statute 
expressly  requires  delivery  of  the  original  writ. 

§  734.  The  return.  "The  person  upon  whom  the 
writ  is  served,  must  state  in  his  return,  plainly  and 
unequivocally: — 

"i.  Whether  he  has  or  has  not  the  party  in  his 
custody,  or  under  his  power  or  restraint. 


455  HABEAS  CORPUS.  §  735 

"2.  If  he  has  the  party  in  his  custody  or  power, 
or  under  his  restraint,  he  must  state  the  authority 
and  cause  of  such  imprisonment  or  restraint. 

"3.  If  the  party  is  detained  by  virtue  of  any  writ, 
warrant,  or  other  written  authority,  a  copy  thereof 
must  be  annexed  to  the  return,  and  the  original  pro- 
duced and  exhibited  to  the  court  or  judge  on  the  hear- 
ing of  such  return."  {California.  Pen.  Code,  sec. 
1480.) 

No  writ  of  habeas  corpus  can  be  disobeyed  for 
defect  in  form.     {Pen.  Code,  sec.  1495.) 

§  735-  Certificate  of  service  by  sheriff.  Section 
1480  of  the  Penal  Code  of  California  commands  that 
"the  person  upon  whom  the  writ  is  served  must  state 
in  his  return,"  etc.  The  statute  contemplates  but  one 
return,  and  that  is  of  the  person  to  whom  the  writ 
is  directed.  When  the  writ  is  served  by  the  sheriff 
upon  another  person,  a  record  of  the  service  by  the 
officer  should  be  made  in  the  court  from  which  the 
writ  issued,  so  that  parties  interested  in  the  proceed- 
ing need  not  be  compelled  to  seek  the  officer  in 
person  to  ascertain  if  servce  had  been  made.  To  this 
end  a  certificate  of  service  may  be  made  by  the  officer, 
and  filed  with  the  clerk  of  the  court,  upon  a  copy 
of  the  writ.  Such  certificate  may  be  in  the  following 
form: — 

In  the  Matter  of  the  Application  of  ^ 

JOHN    DOE  > 

For  a  Writ  of  Habeas  Corpus.       ) 

State  of  Cahfornia,       | 
County  of j 

I  hereby  certify  that  on 
the  day  of ,  19.  .,  I  served  the  writ  of  habeas 


§§  73^)  737       SHERIFFS  AND  CONSTABLES.  456 

corpus  issued  in  the  above  entitled  matter  (a  copy  of  which  is 

hereto  annexed)  upon  the  said by  delivering  said  writ 

to  him  personally  at  said  county  of 

Dated [Signed] 

Sheriff   of    County. 

§  736.    Prisoner  held  by  United  States  court.     A 

state  judge  or  court  has  no  jurisdiction  to  issue  a  writ 
of  habeas  corpus,  or  to  continue  proceedings  under 
the  writ  when  issued,  for  the  discharge  of  a  person 
held  under  the  authority,  or  claim  and  color  of  the 
authority,  of  the  United  States  by  an  officer  of  that 
government.  When  it  is  made  known  to  the  state 
court  that  the  prisoner  is  held  by  virtue  of  an  order 
of  a  court  of  the  United  States,  the  writ  should  be 
discharged.  (Ableman  v.  Booth,  21  Hoiv.  (U.  S.) 
506,  16  L.  £^.  169;  Tarble's  Case,  13  Wall.  {U .  S.) 
i^()y^  20  L.  Ed.  597.)  In  such  a  case  the  sherifif  should 
not  bring  the  prisoner  into  court  under  the  writ,  but 
should  make  his  return  to  the  writ  showing  the  facts. 
{For  form  of  return,  see  sec.  855,  post.) 

§  7?)7-  Warrant  may  issue  instead  of  writ.  When 
it  appears  that  there  is  reason  to  believe  that  the 
person  detained  will  be  carried  out  of  the  jurisdic- 
tion of  the  court  or  judge,  a  warrant  may  be  issued 
(instead  of  writ  of  habeas  corpus)  directed  to  the 
sherifif,  coroner,  or  constable,  commanding  the  ofiicer 
to  take  the  person  held  in  custody,  confinement  or 
restraint,  and  forthwith  bring  him  before  such  court 
or  judge.  A  command  may  also  be  inserted  in  the 
warrant  for  the  apprehension  of  the  person  charged 
with  such  illegal  detention  and  restraint.  {Cali- 
fornia.   Pen.  Code,  sees.  14-^7 ,  1498.) 


457  HABEAS  CORPUS.  §§  738,  739 

§  738.  Service  on  holidays.  Statutory  provision 
is  usually  made  for  the  issuance  and  service  of  the 
writ  of  habeas  corpus  on  any  day  or  at  any  time. 
{California.    Pen.  Code,  sec.  1502.) 

§  739-  No  fees  chargeable.  Usually  no  fees  are 
to  be  charged  in  habeas  corpus  cases,  mention  being 
either  omitted  in  the  respective  fee  bills  or  express 
provision  being  made  prohibiting  the  collection  of 
fees.  (California.  Pen.  Code,  sec.  4333;  County 
Govt.  Bill,  sec.  228.) 


§740 
§741 
§742 
§743 
§744 
§745 
§746 
§747 


CHAPTER   XXVII. 

FUGITIVES   FROM  JUSTICE. 

Fugitives  from  justice,  generally. 

When  extradition  may  be  had. 

Proceedings  for  requisition. 

Forms  of  application. 

Arrest  of  fugitive  for  extradition. 

Expense  of  extradition. 

Requisites  for  obtaining  requisition. 

No  fee  for  procuring  extradition  papers. 


§  740.  Fugitives  from  justice,  generally.  Section 
2  of  article  IV  of  the  Constitution  of  the  United 
States  provides  that  "a  person  charged  in  any  state 
with  treason,  felony  or  other  crime,  who  shall  flee 
from  justice  and  be  found  in  another  state,  shall,  on 
demand  of  the  executive  authority  of  the  state  from 
which  he  fled,  be  delivered  up,  to  be  removed  to  the 
state  having  jurisdiction  of  the  crime."  Pursuant  to 
these  provisions,  the  several  states  have  enacted  stat- 
utes prescribing  the  procedure  for  the  arrest  and 
surrender  of  such  criminals  within  the  boundaries 
of  the  state  and  for  the  institution  of  proceedings  to 
bring  back  criminals  who  have  fled  to  other  states. 
(California.  Pen.  Code,  sees.  1 547-1 558  ;  Po/.  Code, 
sec.  380.) 

§  741.  When  extradition  may  be  had.  In  order 
that  the  arrest  and  delivery  of  the  fugitive  may  be 
had,  there  must  be  actually  pending  against  him  in 
the  state  making  the  demand  a  charge  of  criminality 
in  the  form  of  an  indictment,  information,  affidavit, 


459  FUGITIVES   FROM   JUSTICE.  §  742 

or  other  accusation  authorized  by  the  laws  of  the 
state.  {People  v.  Brady,  56  N.  Y.  182;  Ex  parte 
Smith,  3  McLean,  121,  Fed.  Cas.  No.  12968;  Ex 
parte  White,  49  Cal.  434.)  The  affidavit  upon  which 
the  requisition  issues  need  not  set  forth  the  crime 
charged  with  all  legal  exactness  {Matter  of  Man- 
chester, 5  Cal.  237)  ;  neither  is  it  necessary  that  a 
copy  of  the  indictment  shall  accompany  the  demand 
{Nichols  V.  Cornelius,  7  Ind.  611)  ;  but  the  requisi- 
tion or  proceeding  must  show  that  the  crime  was 
committed  within  the  jurisdiction  of  the  state  making 
the  application,  and  that  the  criminal  has  fled  from 
justice  and  taken  refuge  in  another  state.  {Ex  parte 
Smith,  3  McLean,  121,  Fed.  Cas.  No.  12968.) 

§  742.  Proceedings  for  requisition.  A  person 
who  flees  from  justice  to  another  state  may  be  brought 
back  upon  a  requisition  upon  the  governor  of  the 
state  to  which  the  fugitive  has  escaped.  To  obtain 
such  requisition  application  must  be  made  to  the 
governor  of  the  state  from  which  the  criminal  has 
fled,  accompanied  with  an  affidavit  of  the  person 
making  the  application,  setting  forth  the  name  of 
the  fugitive,  the  crime  with  which  he  is  charged  or 
has  been  convicted,  and  the  present  whereabouts  of 
the  fugitive,  together  with  an  exemplified  copy  of 
the  indictment  found  or  other  judicial  proceedings 
had  agains.t  him  in  the  state  in  which  he  is  charged 
to  have  committed  the  ofifense.  All  papers  thus  for- 
warded must  be  in  duplicate.  The  application  for 
a  requisition  should  request  the  appointment  of  some 
person  (naming  him)  as  a  suitable  person  to  receive 
and  bring  back  the  fugitive.  Care  should  be  taken 
to  see  that  the  proper  certificate  is  made  out,  signed 


§§  743-745       SHERIFFS   AND   CONSTABLES.  460 

by  the  district  attorney  in  accordance  with  section 
746,  post,  and  forwarded  with  the  other  papers  to 
the  governor. 

§  743.  Forms  of  application.  Forms  of  affidavit 
and  request  for  requisition  are  given  in  the  chapter 
on  "Forms"  {see  chapter  XXXII,  sees.  893,  894, 
post),  and  may  be  varied  so  as  to  conform  to  the  par- 
ticular proceeding  under  which  the  fugitive  is  sought 
to  be  arrested. 

§  744.  Arrest  of  fugitive  for  extradition.  A  fugi- 
tive from  another  state  may  be  committed  by  the 
magistrate  to  the  proper  custody  in  the  county  for 
a  reasonable  time,  to  enable  the  arrest  of  the  fugitive 
under  the  warrant  of  the  governor  on  the  requisition 
of  the  governor  of  the  state  in  which  the  crime  was 
committed.  The  accounts  of  the  person  employed  in 
bringing  back  such  fugitive  must  be  audited  by  the 
state  board  of  examiners  and  paid  out  of  the  state 
treasury.  The  proceedings  for  the  arrest  and  com- 
mitment are,  in  all  respects,  similar  to  those  provided 
for  the  arrest  and  commitment  of  a  person  charged 
with  any  public  ofifense  committed  in  the  state,  ex- 
cept that  usually,  as  in  California,  an  exemplified 
copy  of  an  indictment  or  other  judicial  proceedings 
may  be  received  as  evidence  before  the  magistrate. 
{California.    Pen.  Code,  sees.  1548- 1550,  1557.) 

§  745.  Expense  of  extradition.  The  expense  of 
bringing  back  fugitives  from  justice  is  borne  by  the 
state  to  which  they  are  returned  for  trial,  and  statu- 
tory provision  is  usually  made  for  the  auditing  of  the 
bills  therefor. 


461  FUGITIVES  FROM  JUSTICE.  §  746 

§  746.    Requisites  for  obtaining  requisition.     The 

following  are  the  rules  of  practice  adopted  by  a  con- 
ference of  the  representatives  of  the  different  states 
upon  the  subject  of  requisitions.  All  requisitions 
directed  to  the  governor  should  conform  to  the  same: 

"The  application  for  the  requisition  must  be  made 
or  recommended  by  the  district  attorney  for  the 
county  in  which  the  ofifense  was  committed,  and  must 
be  in  duplicate  original  papers,  or  certified  copies 
thereof. 

"The  following  must  appear  by  the  certificate  of 
the  district  attorney: — 

"  {a)  The  full  name  of  the  person  for  whom  extra- 
dition is  asked,  together  with  the  name  of  the  agent 
proposed,  to  be  properly  spelled,  in  roman  capital 
letters;  for  example,  JOHN  DOE. 

"  (/?)  That  in  his  opinion  the  ends  of  public  justice 
require  that  the  alleged  criminal  be  brought  to  this 
state  for  trial  at  the  public  expense. 

"(c)  That  he  believes  he  has  sufficient  evidence  to 
secure  the  conviction  of  the  fugitive. 

"(J)  That  the  person  named  as  agent  is  a  proper 
person,  and  that  he  has  no  private  interest  in  the 
arrest  of  the  fugitive. 

"(^)  If  there  has  been  any  former  application  for 
a  requisition  for  the  same  person,  growing  out  of  the 
same  transaction,  it  must  be  so  stated,  w^ith  an  ex- 
planation of  the  reasons  for  a  second  request,  to- 
gether with  the  date  of  such  application,  as  near  as 
may  be. 

"(/)  If  the  fugitive  is  known  to  be  under  either 
civil  or  criminal  arrest  in  the  state  or  territory  to 


§  74^  SHERIFFS  AND  CONSTABLES.  462 

which  he  is  alleged  to  have  fled,  the  fact  of  such  arrest 
and  the  nature  of  the  proceedings  on  which  it  is  based 
must  be  stated. 

"  (g)  That  the  application  is  not  made  for  the  pur- 
pose of  enforcing  the  collection  of  a  debt,  or  for  any 
private  purpose  whatever,  and  that  if  the  requisition 
applied  for  be  granted,  the  criminal  proceedings 
shall  not  be  used  for  any  of  said  objects. 

"  (//)  The  nature  of  the  crime  charged,  with  a  ref- 
erence, when  practicable,  to  the  particular  statute 
defining  and  punishing  the  same. 

"(/)  If  the  ofifense  charged  is  not  of  recent  occur- 
rence, a  satisfactory  reason  must  be  given  for  the  de- 
lay in  making  the  application. 

"i.  In  all  cases  of  fraud,  false  pretenses,  embez- 
zlement or  forgery,  when  made  a  crime  by  the 
common  law,  or  any,  penal  code  or  statute,  the 
affidavit  of  the  principal  complaining  witness  or  in- 
formant that  the  application  is  made  in  good  faith, 
for  the  sole  purpose  of  punishing  the  accused,  and 
that  he  does  not  desire  or  expect  to  use  the  prosecu- 
tion for  the  purpose  of  collecting  a  debt,  or  for  any 
private  purpose,  and  will  not,  directly  or  indirectly, 
use  the  same  for  any  of  said  purposes,  shall  be  re- 
quired, or  a  sufficient  reason  be  given  for  the  absence 
of  such  affidavit. 

"2.  Proof  by  affidavit  of  facts  and  circumstances 
satisfying  the  executive  that  the  alleged  criminal  has 
fled  from  the  justice  of  the  state,  and  is  in  the  state  on 
whose  executive  the  demand  is  requested  to  be  made, 
must  be  given.  The  fact  that  the  alleged  criminal 
was  in  the  state  where  the  alleged  crime  was  com- 
mitted at  the  time  of  the  commission  thereof,  and  is 


463  FUGITIVES  FROM  JUSTICE.  §  746 

found  in  the  state  upon  which  the  requisition  was 
made,  shall  be  sufficient  evidence,  in  the  absence  of 
other  proof,  that  he  is  a  fugitive  from  justice. 

"3.  If  an  indictment  has  been  found,  certified 
copies,  in  duplicate,  must  accompany  the  application. 

"4.  If  an  indictment  has  not  been  found  by  a  grand 
jury,  the  facts  and  circumstances  showing  the  com- 
mission of  the  crime  charged,  and  that  the  accused 
perpetrated  the  same,  must  be  shown  by  affidavits 
taken  before  a  magistrate  (a  notary  public  is  not  a 
magistrate  within  the  meaning  of  the  statutes),  and 
that  a  warrant  has  been  issued,  and  duplicate  certified 
copies  of  the  same,  together  with  the  returns  thereto, 
if  any,  must  be  furnished  upon  an  application. 

"5.  The  official  character  of  the  officer  taking  the 
affidavits  or  depositions  and  of  the  officer  who  issued 
the  warrant  must  be  duly  certified. 

"6.  Upon  the  renewal  of  an  application  (for  exam- 
ple: on  the  ground  that  the  fugitive  has  fled  to  an- 
other state,  not  having  been  found  in  the  state  on 
which  the  first  was  granted),  new  or  certified  copies 
of  papers  in  conformity  with  the  above  rules  must  be 
furnished. 

"7.  In  the  case  of  any  person  who  has  been  con- 
victed of  any  crime,  and  escapes  after  conviction,  or 
while  ser\nng  his  sentence,  the  application  may  be 
made  by  the  jailer,  sheriff  or  other  officer  having  him 
in  custody,  and  shall  be  accompanied  by  certified 
copies  of  the  indictment  or  information,  record  of 
conviction  and  sentence,  upon  which  the  person  is 
held,  with  the  affidavit  of  such  person  having  him  in 
custody,  showing  such  escape,  with  the  circumstances 
attending  the  same. 


§  747  SHERIFFS  AND  CONSTABLES.  464 

"8.  No  requisition  will  be  made  for  the  extradi- 
tion of  any  fugitive  except  in  compliance  with  these 
rules." 

§  747.     No  fee  for  procuring  extradition  papers. 

*'No  compensation,  fee,  or  reward  of  any  kind  can 
be  paid  to  or  received  by  a  public  officer  of  this  state, 
or  other  person,  for  a  service  rendered  in  procuring 
from  the  governor  the  demand  mentioned  in  the 
last  section,  or  the  surrender  of  the  fugitive,  or  for 
conveying  him  to  this  state,  or  detaining  him  therein, 
except  as  provided  for  in  such  section."  Any  person 
violating  any  of  these  provisions  is  guilty  of  a  mis- 
demeanor.   (California.    Pen.  Code,  sees.  144,  1558.) 


§748 
§749 
§75o 
§751 
§752 
§753 


CHAPTER    XXVIII. 

REWARDS. 

Offer  of  reward  binding. 

Essentials  for  recovery. 

When  reward  is  not  earned. 

Recovery  by  deputy  sheriff — Public  policy. 

Information  not  the  same  as  capture. 

When  officer  not  entitled  to  reward. 


§  748.  Offer  of  reward  binding  An  agreement 
by  one  who  has  lost  property  by  fire  or  theft  to  pay  a 
certain  sum  to  any  one  who  will  secure  the  arrest 
and  conviction  of  the  criminal  is  not  a  nude  pact,  but 
may  be  enforced  by  a  person  performing  the  service. 

In  such  cases  the  offer  of  a  reward  or  compensa- 
tion by  public  advertisement,  either  to  a  particular 
person  or  class  of  persons,  or  to  any  and  all  persons, 
is  a  conditional  promise;  and  if  any  one  to  whom  such 
offer  is  made  shall  perform  the  service  before  the 
ofifer  is  revoked,  such  performance  is  a  good  consid- 
eration, and  the  ofifer  becomes  a  legal  and  binding 
contract.  Until  the  performance  the  ofifer  may  be 
revoked  at  pleasure. 

Such  advertisements,  upon  acceptance  of  their 
terms  and  performance  of  the  services,  become  writ- 
ten contracts.  (Ryer  v.  Stockivell,  14  Cal.  134,  73 
A7n.  Dec.  634;  McLeod  v.  Meade,  Jj  Cal.  87,  19 
Pac.   189.) 

§  749.  Essentials  for  recovery.  To  entitle  a  per- 
son to  recover  a  reward  he  must  show  that  he  knew 


§§  750-752       SHERIFFS  AND  CONSTABLES.  466 

the  reward  was  offered,  and  that  he  acted  in  reference 
to  it,  and  in  faith  of  getting  it.  (Hewitt  v.  Anderson, 
56  CaL  476,  38  Am.  Rep.  65.) 

§  y^o.  When  reward  is  not  earned.  An  ofTfer 
by  a  party  who  has  been  robbed,  of  a  reward  for  the 
arrest  and  conviction  of  the  robbers  is  not  earned  by 
one  who  merely  communicates  to  the  party  robbed 
his  suspicions  that  a  certain  person  is  guilty,  with  a 
statement  that  others  were  satisfied  of  his  guilt,  and 
that  circumstances  pointed  strongly  towards  him,  and 
who  does  not  claim  the  reward  until  after  the  arrest 
and  conviction  of  the  robbers.  (Burke  v.  Wells, 
Fargo  &  Co.,  50  CaL  218.) 

Where  the  reward  was  for  such  information  as 
would  lead  to  the  arrest  and  conviction  of  the  crim- 
inal, there  could  be  no  claim  for  the  money  until  trial 
and  conviction.  The  statute  of  limitations  begins  to 
run  from  that  time^  and  the  limitation  would  be  the 
same  as  on  a  written  contract.  (Ryer  v.  Stockwell, 
14  Cal.  134,  73  Am.  Dec.  634.) 

§751.    Recovery  by  deputy  sheriff — Public  policy. 

An  agreement  to  compensate  a  deputy  sheriff  for, 
procuring  evidence  to  convict  for  a  crime  committed 
in  another  county  is  not  contrary  to  public  policy  and 
may  be  enforced.  (Harris  v.  Moore,  70  Cal.  502, 
II  Pac.  780.) 

§  752.    Information  not  the  same  as  capture.    One 

is  not  entitled  to  a  reward  for  the  "capture"  of  a  thief 
simply  because  he  has  informed  an  officer  where  the 
thief  can  be  found,  although  the  officer  goes  at  once 
and  makes  an  arrest.    A  reward  offered  for  a  "cap- 


467  REWARDS.  §  753 

ture"  is  not  a  reward  offered  for  information.  (Ever- 
man  v.  Hyman,  26  Ind.  App.  165,  28  N.  E.  1022,  84 
Am.  St.  Rep.  284.) 

§  753-    When  officer  not  entitled  to  reward.     A 

sheriff,  whose  fees  or  salary  are  fixed  by  law,  and 
whose  duty  it  is  to  arrest  a  guilty  person  within  his 
jurisdiction,  cannot  recover  a  reward  offered  there- 
for, though  he  made  extra  exertions  and  incurred  ex- 
penses not  covered  by  the  legal  fees  or  salary  he  was 
authorized  to  charge.  In  McLeer  v.  Colgan,  120 
Cal.  262,  52  Pac.  502,  where  a  captain  of  police  of 
the  city  and  county  of  San  Francisco  apprehended  a 
murderer  in  such  city  and  county  for  a  murder  com- 
mitted in  another  county,  it  was  held  that  the  captain 
made  the  arrest  of  the  murderer  in  the  line  of  his 
official  duty,  and  that  it  was  against  sound  public 
policy  to  receive  a  reward  offered  by  the  government 
of  the  state  for  the  arrest  and  conviction  of  the  mur- 
derer; and  in  that  case  the  court  say:  "The  courts, 
both  in  this  country  and  in  England,  are  practically 
unanimous  in  declaring  that  a  public  officer,  working 
for  a  fixed  compensation,  or  whose  fees  are  pre- 
scribed by  law,  cannot  demand  or  contract  for  a 
reward  for  services  rendered  in  the  line  or  scope  of 
his  official  duty." 

The  offer  of  a  reward  for  the  arrest  and  conviction 
of  the  person  or  persons  who  committed  a  designated 
crime  is  complied  with  and  the  reward  earned  by  ob- 
taining and  giving  to  some  interested  person  sufficient 
information  in  relation  to  the  perpetrator  of  the  crime 
and  his  whereabouts  as  to  authorize  and  secure  the 
arrest  of  the  offender;  and  subsequently  to  procure 
his  conviction  by  a  court  of  competent  jurisdiction. 


§  J^2>  SHERIFFS  AND  CONSTABLES.  468 

Hence,  it  is  no  defense  to  an  action  for  such  reward 
that  the  plaintiff  did  not  arrest  the  criminal,  if 
plaintiff  discovered  facts  and  circumstances  tending 
strongly  to  inculpate  the  person  who  thereupon,  be- 
ing confronted  with  the  charge  by  the  plaintiff,  made 
a  full  confession  of  his  guilt,  and  afterward  pleaded 
guilty  to  the  indictment  found  against  him.  {Haskell 
V.  Davidson,  91  Me.  488,  64  Am.  St.  Rep.  254,  40 
AtL330,^2L.R.A.  155.) 


754 
755 
756 
757 
758 

759 
760 
76i 
762 


CHAPTER    XXIX. 

SEARCH   WARRANTS. 

Search  warrant,  generally.  ; 

How  served. 
By  whom  served. 
Time  for  return. 
Service  by  day  or  night. 
Receipt  for  property  taken. 
Search  of  person — Lottery  tickets. 
Disposition  of  property  in  search  warrant. 
Any  peace  officer  may  serve  search  warrants  anywhere 
in  his  county. 


§  754.  Search  warrant,  generally.  A  search  war- 
rant is  an  order  in  writing  in  the  name  of  the  people, 
signed  by  a  magistrate,  directed  to  a  peace  officer, 
commanding  him  to  forthwith  search  the  person  or 
place  named  for  the  property  specified,  and  to  bring 
it  before  the  magistrate.  {California.  Pen.  Code, 
sec.  1523.) 

§  755.  How  served.  In  serving  a  search  war- 
rant "The  officer  may  break  open  any  outer  or  inner 
door  or  window  qf  a  house,  or  any  part  of  a  house,  or 
anything  therein,  to  execute  the  warrant,  if,  after  no- 
tice of  his  authority  and  purpose,  he  is  refused  ad- 
mittance. He  may  break  open  doors  and  windows 
for  the  purpose  of  liberating  a  person  who,  having 
entered  to  aid  him,  is  detained  therein,  or  when  nec- 
essary for  his  own  liberation."  (California.  Pen. 
Code,  sees.  1531,  1532.) 


§§  7S^-7^^       SHERIFFS  AND  CONSTABLES.  470 

§  756.  By  whom  served.  It  may  in  all  cases 
be  served  by  any  sheriff,  constable,  marshal,  or  police- 
man, but  by  no  other  person,  except  in  aid  of  the 
officer  on  his  requiring  it,  he  being  present  and  acting 
in  its  execution.     {California.  Pen.  Code,  sec.  1530.) 

§  757-  Time  for  return.  "A  search  warrant  must 
be  executed  and  returned  to  the  magistrate  who 
issued  it  within  ten  days  after  its  date;  after  the 
expiration  of  this  time,  the  warrant,  unless  executed, 
is  void."     {California.    Pen.  Code,  sec.  1^2^-) 

,  §  758.  Service  by  day  or  night.  The  magistrate 
issuing  a  search  warrant  must  insert  a  direction  there- 
in "that  it  be  served  in  the  daytime,  unless  the  affi- 
davits are  positive  that  the  property  is  on  the  person 
or  in  the  place  to  be  searched,  in  which  case  he  may 
insert  a  direction  that  it  be  served  at  any  time  of  the 
day  or  night."     {California.    Pen.  Code,  sec.  1533.) 

§  759,  Receipt  for  property  taken.  The  officer 
must  give  a  receipt  for  the  property  taken  to  the 
person  in  whose  possession  it  was  found,  and  file  with 
the  return  an  inventory  of  the  property  taken.  {Cal- 
ifornia.  Pen.  Code,  sec.  1535.) 

§  760.    Search  of  person — Lottery  tickets.     The 

legislature  has  power  to  authorize  the  issuance  of  a 
warrant  to  search  the  person  of  an  individual  in  a 
proper  case.  In  California  such  power  has  been  ex- 
ercised by  the  enactment  of  sections  1523  to  1542  of 
the  Penal  Code. 

Under  a  warrant  authorizing  the  searching  of  a 
certain  person  for  lottery  tickets  the  officer  was  justi- 


471  SEARCH   WARRANTS.  §§761,762 

fied  in  carrying  away  tickets  discovered  in  the  room 
where  the  search  was  made  for  the  purpose  of  using 
them  as  evidence.  After  the  tickets  are  no  longer 
required  as  evidence,  the  owner  is  not  entitled  to 
have  them  returned  to  him,  in  a  suit  against  a  police 
officer  having  them,  as  they  are  in  law  not  in  his  cus- 
tody but  in  that  of  the  magistrate  to  whom  they  were 
taken  under  the  search  warrant.  (Collins  v.  Lean, 
68  Cal.  284,  9  Pac.  173.) 

§  76 1 .     Disposition  of  property  in  search  warrant. 

Section  1536  of  the  California  Penal  Code  provides 
that  when  the  property  is  delivered  to  the  magistrate 
he  must,  if  it  was  stolen  or  embezzled,  or  if  it  was 
taken  on  a  warrant  issued  on  the  grounds  stated  in 
the  fourth  subdivision  of  section  1524  of  the  Penal 
Code,  dispose  of  it  as  provided  in  sections  1408  and 
1413.  If  it  was  taken  on  a  warrant  issued  on  the 
grounds  stated  in  the  second  and  third  subdivisions 
of  section  1524,  he  must  retain  it  in  his  possession, 
subject  to  the  order  of  the  court  to  which  he  is 
required  to  return  the  proceedings  before  him,  or  of 
any  other  court  in  which  the  offense  in  respect  to 
which  the  property  taken  is  triable. 

§  762.  Any  peace  officer  may  serve  search  war- 
rants anywhere  in  his  county.  Section  1529  of  the 
California  Political  Code  requires  that  a  search  war- 
rant shall  be  directed  to  "any  sheriff,  constable, 
marshal,  or  policeman  in  the  county."  It  must  be 
issued  by  a  magistrate.  {Pen.  Code,  sec.  1523.)  A 
magistrate  is  defined  by  section  807  as  "an  officer 
having  power  to  issue  a  warrant  for  the  arrest  of  a 
person  charged  with  a  public  ofifense";  and  section 
808  enumerates  the  following  persons  as  magistrates: 


§  762  SHERIFFS  AND  CONSTABLES.  472 

The  justices  of  the  supreme  court,  the  judges  of  the 
superior  courts,  justices  of  the  peace,  police  magis- 
trates in  towns  or  cities.  In  Omeara  v.  Merritt,  128 
Mich.  249,  87  N.  W.  197,  the  court  held  that  jurisdic- 
tion of  a  police  court  of  a  city  to  issue  a  search  war- 
rant extends  throughout  the  county,  and  continues: 
"The  important  question  in  the  case  is,  Was  the  police 
judge  authorized  to  issue  a  search  warrant  that  might 
be  served  anywhere  in  the  county  of  Kent?  The 
plaintiff  says  no,  but  fails  to  find  any  authority  upon 
the  question.  The  act  creating  the  police  court  is 
silent  upon  the  subject  of  search  warrants.  In  How- 
ard's Annotated  Statutes,  section  6591  d,  is  found  a 
statement  of  the  power  of  the  police  court.  Among 
other  powers  conferred  upon  the  judge  is,  'He  shall 
also  have  all  the  powers  and  authority  of  a  justice  of 
the  peace  except  in  the  trial  of  civil  cases.'  Compiled 
Laws,  section  1 1986,  confers  upon  any  magistrate  au- 
thorized to  issue  warrants  in  criminal  cases,  upon 
proper  complaint  being  made,  authority  to  issue' 
search  warrants.  Compiled  Laws,  section  11988,  re- 
quires that  all  search  warrants  shall  be  directed  to 
the  sheriff  or  any  constable  of  the  county.  That  the 
police  judge  is  a  magistrate  authorized  to  issue  war- 
rants in  criminal  cases  is  not  open  to  question.  This 
being  so,  he  has  the  authority,  upon  proper  complaint 
being  made,  to  issue  search  warrants,  which  shall  be 
directed  as  commanded  by  the  statute.  The  form 
of  the  complaint  to  be  made  in  these  cases  found  in 
the  fourth  edition  of  Tiffany's  Criminal  Law,  357, 
indicates  that  the  learned  author  understood  that  for 
property  stolen  in  the  city  of  Adrian  and  concealed 
in  a  dwelling  house  outside  of  said  city  a  search  war- 
rant might  be  issued,  and  such  has  been  the  under- 


473  SEARCH  WARRANTS.  §  762 

Standing  of  lawyers.  In  this  case  the  complaint 
showed  the  larceny  of  a  wheel  in  the  city  of  Grand 
Rapids  and  reasonable  cause  to  believe  it  was  con- 
cealed in  the  house  of  plaintiff  in  Byron.  This  gave 
the  magistrate  authority  to  issue  the  warrant,  and 
the  warrant,  being  in  due  and  legal  form,  was  a 
complete  protection  to  the  officer." 


CHAPTER    XXX. 

COUNTY  JAIL. 

§  763.  Jail,  by  whom  kept  and  for  what  use. 

§  764.  Rooms  required  in  jails. 

§  765.  Searching  of  cells,  etc. 

§  766.  Prisoners  to  be  classified. 

§  767.  Prisoners  mMst  be  confined. 

§  768.  United  States  prisoners. 

§  769.  Unsafe  jail. 

§  769a.  Photographing  prisoners. 

§  770.  Removal  in  case  of  fire. 

§  771.  Removal  in  case  of  pestilence. 

§  ']'J2.  Service  of  papers  on  prisoners. 

§  ITh-  Guard  for  jail. 

§  774.  Sheriff  must  receive  all  persons  committed. 

§  775.  Prisoners  on  civil  process. 

§  776.  Expense  of  boarding  prisoners. 

§  yj"].  Working  of  prisoners. 

§  778.  Custody  of  prisoners  while  working. 

§  779-  Officer  refusing  to  receive  criminals. 

§  780.  Prisoner  entitled  to  visits  of  counsel. 

§  781.  Rescuing  prisoners. 

§  782.  Escapes  from  jail. 

§  783.  Escape — Computation  of  term.  , 

§  784.  Credits  allowable  to  prisoners. 

§  785.  Inhumanity  to  prisoners. 

§  786.  Carrying  articles  to  prisoners. 

§  787.  Injuring  jails. 

§  763.    Jail,  by  whom  kept  and  for  what  used. 

The  common  jails  in  the  several  counties  af  the  state 
are  kept  by  the  sheriffs  of  the  counties  in  which  they 
are  respectively  situated,  and  are  used  for  the  deten- 
tion of  all  persons  lawfully  committed  thereto.  {Cal- 
ifornia. Pen.  Code,  sec.  1597.) 


475  COUNTY  JAIL.  §§  764-766 

The  sheriffs  of  counties  of  the  first,  second,  third, 
and  fourth  classes  are  authorized  by  section  4226  of 
the  Statutes  of  1907,  p.  414,  to  appoint  an  official 
matron  of  the  several  county  jails  therein,  to  have  free 
access  at  all  reasonable  times  to  the  immediate  pres- 
ence of  all  female  prisoners. 

§  764.  Rooms  required  in  jails.  "Each  county 
jail  must  contain  a  sufficient  number  of  rooms  to 
allow  all  persons  belonging  to  either  one  of  the  fol- 
lowing classes  to  be  confined  separately  and  distinctly 
from  persons  belonging  to  either  of  the  other  classes: 
(i)  Persons  committed  on  criminal  process  and  de- 
tained for  trial;  (2)  persons  already  convicted  of 
crime  and  held  under  sentence;  (3)  persons  detained 
as  witnesses  or  held  under  civil  process,  or  under  an 
order  imposing  punishment  for  a  contempt;  (4) 
males  separately  from  females."  {California.  Pen. 
Code,  sec.  1598.) 

§  765.  Searching  of  cells,  etc.  All  cells  should 
be  frequently  searched,  and  mattresses  and  bed- 
ding thoroughly  overhauled,  for  contraband  articles. 
Saws,  files,  and  even  ropes  are  easily  smuggled  into 
a  jail,  despite  the  watchfulness  of  its  keepers.  There 
is  no  criminal  so  hardened  in  crime  but  that  he  has 
sympathizers  who  are  ever  ready  to  aid  him  to  regain 
his  liberty.  With  the  more  desperate  classes  it  is  a 
constant  study  of  how  to  escape  from  confinement. 
With  such  prisoners  the  jailer  must-exercise  constant 
vigilance  or  allow  himself  to  be  outwitted. 

§  766.    Prisoners  to  be  classified.     "Persons  com- 
mitted on  criminal  process  and  detained  for  trial. 


§§  7^7-7^9       SHERIFFS  AND  CONSTABLES.  476 

persons  convicted  and  under  sentence,  and  persons 
committed  upon  civil  process,  must  not  be  kept  or 
put  in  the  same  room,  nor  shall  male  and  female 
prisoners  (except  husband  and  wife)  be  kept  or  put 
in  the  same  room."      {California.     Pen,   Code,  sec. 

IS99-) 

§  767.  Prisoners  must  be  confined.  "A  prisoner 
committed  to  the  county  jail  for  trial  or  for  examina- 
tion, or  upon  conviction  for  a  public  offense,  must 
be  actually  confined  in  the  county  jail  until  he  is 
legally  discharged;  and  if  he  is  permitted  to  go  at 
large  out  of  the  jail,  except  by  virtue  of  a  legal  order 
or  process,  it  is  an  escape."  {California.  Pen.  Code, 
sec.  1600.) 

§  768.  United  States  prisoners.  "The  sheriff 
must  receive,  and  keep  in  the  county  jail,  any  pris- 
oner committed  thereto  by  process  or  order  issued 
under  the  authority  of  the  United  States,  until  he  is 
discharged  according  to  law,  as  if  he  had  been  com- 
mitted under  process  issued  under  the  authority  of 
this  state;  provision  being  made  by  the  United  States 
for  the  support  of  such  prisoner."  The  sheriff  is 
answerable  for  such  prisoner's  safe  keeping  in  the 
courts  of  the  United  States  according  to  the  laws 
thereof.     {California.    Pen.  Code,  sees.  1601,  1602.) 

§769.  Unsafe  jail.  Section  1603  of  the  Penal 
Code  provides  that  when  there  is  no  jail  in  the  county 
or  when  the  jail  becomes  unfit  or  unsafe  for  the  con- 
finement of  prisoners  the  judge  of  the  superior  court 
may,  by  a  written  order  filed  with  the  county  clerk, 
designate  the  jail  of  a  contiguous  county  for  the  con- 


477  COUNTY  JAIL.  §  769a 

finement  of  the  prisoners  of  his  county,  or  of  any  of 
them,  and  may  at  any  time  modify  or  vacate  such 
order.  Section  1605  provides  for  the  revocation  of 
such  order. 

§  769a.  Photographing  prisoners.  If  in  his  dis- 
cretion a  sheriff  deems  it  necessary  to  the  prevention 
of  the  escape  of  an  accused  person  to  take  the  pris- 
oner's photograph  and  to  ascertain  his  height,  weight, 
and  other  phyisical  peculiarities,  and  his  name,  resi- 
dence, place  of  birth,  etc.,  he  may  do  so  without  in- 
curring liability  on  his  official  bond  therefor,  his 
acts  being  without  personal  violence  to  the  prisoner. 

A  sheriff  does  not  act  officially  in  sending  photo- 
graphs of  an  accused  person,  with  descriptions  of 
such  person,  to  various  individuals  and  police  depart- 
ments, whereby  the  accused  is  held  out  to  the  world 
as  a  criminal;  and  the  sheriff  and  his  sureties  are  not 
liable  on  his  official  bond  for  such  acts,  though  the 
officer  may  be  amenable  to  a  libel  suit.  (State  ex  rel. 
Bruns  V.  Claiismier,  57  N.  E.  541.) 

In  the  case  of  the  State  ex  rel.  Bruns  v.  Claus- 
meier  et  al.  the  supreme  court  of  Indiana,  in  a  de- 
cision filed  May  29,  1900,  says:  "It  is  the  duty  of  a 
sheriff  to  confine  in  jail  and  safely  keep  all  persons 
in  his  custody,  awaiting  trial  on  a  charge  of  crime, 
until  lawfully  discharged,  and,  if  they  escape,  to  pur- 
sue and  recapture  them.  A  sheriff,  in  making  an 
arrest  for  a  felony  on  a  warrant,  has  the  right  to  exer- 
cise a  discretion,  not  only  as  to  the  means  taken  to 
apprehend  the  person  named  in  the  warrant,  but  also 
as  to  the  means  necessary  to  keep  him  safe  and  secure 
after  such  apprehension  until  lawfully  discharged; 
and  he  has  the  right  to  take  such  steps  and  adopt 


§  769a  SHERIFFS  AND  CONSTABLES.  478 

such  measures  as,  in  his  discretion,  may  appear  to  be 
necessary  to  the  identification  and  recapture  of  per- 
sons in  his  custody  if  they  escape.     Unless  this  dis- 
cretion is  abused  through  malice,  wantonness,  or  a 
reckless  disregard  for,  and  a  selfish  indifference  to, 
the  common  dictates  of  humanity,  the  officer  is  not 
liable.      (Firestone  v.  Rice,  ji  Mich,  yj']^   15  Am. 
St.  Rep.  266,  38  N.  IV.  885;  Diers  v.  Mallon,  46 
Neb.  121,  50  Am.  St.  Rep.  598,  64  N.  W.  722.)     It 
is  the  duty  of  the  said  officer  to  search  the  person 
and  take  from  him  all  money  or  other  articles  that 
may  be  used  as  evidence  against  him  at  the  trial. 
{Rusher  v.  State,  94  Ga.  363,  21  S.E.  593,  47  Am.  St. 
Rep.  175,  and  note  on  page  180.)     And  he  may  take 
from  him  any  dangerous  weapons,  or  anything  else 
that  said  officer  may,  in  his  discretion,  deem  necessary 
to  his  own  or  the  public  safety,  or  for  the  safe  keep- 
ing of  the  prisoner,  and  to  prevent  his  escape;  and 
such  property,  whether  goods  or  money,  he  holds 
subject  to  the  order  of  the  court."     (Closson  v.  Mor- 
rison, 47  A^.  H.  482,  93  Am.  Dec.  459;  Commercial 
Exchange  Bank  v.  McLeod,  65  Iowa,  665,  19  A^.  W. 
329,  22  A^.  JV.  919,  54  Am.  Rep.  36;  Reifsnyder  v. 
Lee,  44  Iowa,    loi,   21    Am.  Rep.   733;   Ho/ker  v. 
Hennessy,  141  Mo.  527,  540,  42  S.  JV.  1090,  64  Am. 
St.  Rep.  524,  532,  and  note  p.  537,  39  L.  R.  A.  165; 
Gillett  Crim.  Law  (id  ed.)^  sec.  158.)     In  Closson  v. 
Morrison,  supra,  it  was  held  that  said  officer  might 
not  only  take  any  deadly  weapon  he  might  find  on 
the  person,  but  also  money  or  other  articles  of  value 
found  upon  the  person,  though  not  connected  with 
the  crime  for  which  he  was  arrested,  and  could  not 
be  used  as  evidence  on  the  trial  thereof,  by  means  of 
which,  if  left  in  his  possession,  he  might  procure  his 


479  COUNTY  JAIL.  §  679a 

escape,  or  obtain  tools,  implements,  or  weapons  with 
which  to  effect  his  escape.  It  would  seem,  therefore, 
if,  in  the  discretion  of  the  sheriff,  he  should  deem  it 
necessary  to  the  safe  keeping  of  a  prisoner  and  to 
prevent  his  escape,  or  to  enable  him  the  more  readily 
to  retake  the  prisoner  if  he  should  escape,  to  take  his 
photograph  and  a  measurement  of  his  height,  and 
ascertain  his  weight,  name,  residence,  place  of  birth, 
occupation,  and  the  color  of  his  eyes,  hair  and  beard, 
as  was  done  in  this  case,  he  could  lawfully  do  so. 
The  complaint  does  not  charge  that  any  physical 
force  was  used  to  induce  the  relator  to  have  his  nega- 
tive taken,  or  to  furnish  the  sheriff  the  information 
above  mentioned  not  obtainable  by  observation.  It 
is  evident  that  the  substantial  cause  of  action  set  forth 
in  the  complaint  is  an  alleged  libel  of  the  relator 
by  the  appellee  Clausmeier,  in  the  publication  of  said 
pictures  and  the  writing  on  the  back  thereof,  by  send- 
ing the  same  to  the  police  department  of  Fort  Wayne 
and  to  divers  persons  to  the  relator  unknown.  Con- 
ceding, without  deciding,  that  if  a  sheriff  commit 
an  assault  and  battery  upon  a  person  in  his  custody, 
or  fails  to  use  ordinary  care  to  protect  him  against 
acts  of  violence  from  others,  he  and  his  sureties  are 
liable  on  his  official  bond  to  such  person  therefor, 
yet  it  does  not  follow  that  a  sheriff  and  his  sureties 
are  liable  on  his  official  bond  for  libelous  words 
published  by  said  sheriff  of  and  concerning  a  person 
in  his  custody.  If  a  sheriff  have  a  person  in  his  cus- 
tody on  a  charge  of  crime,  and  orally  or  in  writing 
uses  language  concerning  said  person  which  is  slan- 
derous or  libelous  per  se,  while  he  may  be  liable  to 
an  action  therefor,  there  is  no  liability  on  his  official 
bond  on  account  thereof.    A  person  who  is  a  sheriff, 


§§  77^-77^       SHERIFFS  AND  CONSTABLES.  480 

in  speaking  or  writing  such  language  under  such  cir- 
cumstances, is  not  guilty  of  any  misfeasance  or  non- 
feasance as  such  officer.  He  is  neither  performing  an 
official  duty  in  a  proper  or  improper  manner,  nor 
doing  any  act  whatever  as  an  officer.  It  is  evident 
that  said  Clausmeier,  in  sending  said  photographs 
with  the  writing  on  the  backs  thereof,  was  not  acting 
either  virtute  officii  or  colore  officii.  Under  such 
circumstances  there  is  no  liability  on  an  official  bond. 
{State  V.  Givan,  45  Ind.  267;  State  v.  Kent,  53  Ind. 
112.)  ;.  1 

§  770.  Removal  in  case  of  fire.  "When  a  coun- 
ty jail  or  a  building  contiguous  to  it  is  on  fire,  and 
there  is  reason  to  apprehend  that  the  prisoners  may 
be  injured  or  endangered,  the  sheriff  or  jailer  must 
remove  them  to  a  safe  and  convenient  place,  and 
there  confine  them  as  long  as  it  may  be  necessary  to 
avoid  the  danger."  (California.  Pen.  Code,  sec. 
1607.) 

§  771.  Removal  in  case  of  pestilence.  When  a 
pestilence  or  contagious  disease  breaks  out  in  or  near 
a  jail,  and  the  physician  thereof  certifies  that  it  is 
liable  to  endanger  the  health  of  the  prisoners,  the 
sheriff  may  remove  the  prisoners  upon  an  order  of 
the  superior  judge.  {California.  Pen.  Code,  sec. 
1608.) 

§  772.  Service  of  papers  on  prisoners.  "A  sheriff 
or  jailer  upon  whom  a  paper  in  a  judicial  proceed- 
ing, directed  to  a  prisoner  in  his  custody,  is  served, 
must  forthwith  deliver  it  to  the  prisoner,  with  a 
note  thereon  of  the  time  of  its  service.    For  a  neglect 


481  COUNTY  JAIL.  §§773-775 

to  do  so  he  is  liable  to  the  prisoner  for  all  damages 
occasioned  thereby."  {California.  Pen.  Code,  sec. 
1609.) 

§  773.  Guard  for  jail.  "The  sheriff,  when  nec- 
essary, may,  with  the  assent  in  writing  of  the  superior 
court  judge,  or,  in  a  city,  of  the  mayor  thereof,  em- 
ploy a  temporary  guard  for  the  protection  of  the 
county  jail,  or  for  the  safe  keeping  of  prisoners,  the 
expenses  of  which  are  a  county  charge."  (Califor- 
nia.   Pen.  Code,  sec.  1610.) 

§  774.  Sheriff  must  receive  all  persons  com- 
mitted. "The  sheriff  must  receive  all  persons  com- 
mitted to  jail  by  competent  authority,  and  provide 
them  with  necessary  food,  clothing  and  bedding,  for 
which  he  shall  be  allowed  a  reasonable  compensa- 
tion, to  be  determined  by  the  board  of  supervisors." 
[California.    Pen.  Code,  sec.  161 1.) 

§  775-  Prisoners  on  civil  process.  "Whenever  a 
person  is  committed  upon  process  in  a  civil  action 
or  proceeding,  except  when  the  people  of  this  state 
are  a  party  thereto,  the  sheriff  is  not  bound  to  receive 
such  person,  unless  security  is  given  on  the  part  of 
the  party  at  whose  instance  the  process  is  issued,  by  a 
deposit  of  money  to  meet  the  expenses  for  him  of 
necessary  food,  clothing  and  bedding,  or  to  detain 
such  person  any  longer  than  these  expenses  are  pro- 
vided for.  This  section  does  not  apply  to  cases  where 
a  party  is  committed  as  a  punishment  for  disobedi- 
ence to  the  mandates,  process,  writs  or  orders  of 
court."     (California.     Pen.  Code,  sec.  161 2.) 


§§  77^-77^       SHERIFFS   AND   CONSTABLES.  482 

§776.  Expense  of  boarding  prisoners.  The  board 
of  supervisors  shall  allow  to  the  sheriff  his  necessary 
expenses  for  boarding  prisoners  at  the  county  jail, 
and  shall  fix  the  price  at  which  they  shall  be  boarded, 
except  when  otherwise  provided  by  law,  (Califor- 
nia. Comity  Govt.  Bill,  sees.  216,  230;  Stats.  1893, 
pp.  507,  511.) 

When  the  statute  allows  to  the  sheriff  for  feeding 
the  prisoners  "a  reasonable  compensation,  to  be  deter- 
mined by  the  board  of  supervisors''  (California. 
Pen.  Code,  sec.  161 1),  action  by  the  supervisors  does 
not  preclude  the  officer  from  bringing  suit  against 
the  county  in  case  he  is  dissatisfied  with  the  amount 
allowed  by  the  board.  (Fulkerth  v.  County  of  Stan- 
islaus, 67  Cal.  334,  7  Pac.  754.) 

§  777-  Working  of  prisoners. — "Persons  confined 
in  the  county  jail  under  a  judgment  of  imprisonment 
rendered  in  a  criminal  action  or  proceeding,  may  be 
required  by  an  order  of  the  board  of  supervisors  to 
perform  labor  on  the  public  w^orks  or  ways  in  the 
county."     (California.    Pen.  Code,  sec.  i6i2-) 

§  778.  Custody  of  prisoners  while  working.  Un- 
der two  statutes,  one  requiring  that  the  sheriff  must 
"take  charge  of  and  keep  the  county  jail  and  the  pris- 
oners therein,"  and  the  other  authorizing  the  w^ork- 
ing  of  prisoners  upon  public  roads,  "under  the  direc- 
tion of  some  responsible  person,"  the  sheriff  cannot 
refuse  to  turn  over  prisoners  to  the  overseer  appoint- 
ed by  the  supervisors  under  the  latter  act  on  the 
ground  that  he  is  their  only  legal  custodian.  (Hicks 
V.  Folks,  97  Cal.  241,  32  Pac.  8.) 


483  COUNTY  JAIL.  §§  779-782 

§  779.     Officer    refusing    to    receive     criminaJs. 

"Every  sheriff,  coroner,  keeper  of  a  jail,  constable, 
or  other  peace  officer,  who  willfully  refuses  to  re- 
ceive or  arrest  any  person  charged  with  a  criminal 
offense,  is  punishable  by  fine  not  exceeding  five  thou- 
sand dollars,  and  imprisonment  in  the  county  jail  not 
exceeding  five  years."  {California.  Pen.  Code, 
sec.  142.) 

§  780.    Prisoner  entitled  to  visits  of  counsel.    The 

defendant  must  in  all  cases  be  taken  before  the  magis- 
trate without  unnecessary  delay,  and  after  such  arrest 
any  attorney  at  law  entitled  to  practice  in  the  courts 
of  record  of  California  may  at  the  request  of  the 
prisoner  or  any  relative  of  such  prisoner  visit  the 
person  so  arrested.  Any  officer  having  charge  of 
the  prisoner  so  arrested  who  willfully  refuses  or 
neglects  to  allow  such  attorney  to  visit  a  prisoner  is 
guilty  of  a  misdemeanor.  Any  officer  having  a  pris- 
oner in  charge  who  refuses  to  allow  an  attorney  to 
visit  the  prisoner  when  proper  application  is  made 
therefor  shall  forfeit  and  pay  to  the  party  aggrieved 
the  sum  of  five  hundred  dollars,  to  be  recovered  by 
action  in  any  court  of  competent  jurisdiction.  {Pen. 
Code,  sec.  825 ;  Stats.  1907,  p.  888.) 

§781.  Rescuing  prisoners.  "Every  person  who 
rescues  or  attempts  to  rescue,  or  aids  another  person 
in  rescuing  or  attempting  to  rescue,  any  prisoner 
from  any  prison,  or  from  any  officer  or  person  having 
him  in  lawful  custody,"  is  punishable  under  section 
loi  of  the  Penal  Code  of  California. 

§  782.  Escapes  from  jail.  "Every  prisoner  con- 
fined in  any  other  prison  than  a  state  prison,  who 


§§  7'^1>^  784       SHERIFFS  AND  COxXSTABLES.  484 

escapes  or  attempts  to  escape  therefrom  is  guilty  of 
a  misdemeanor."     {California.    Pen.  Code,  sec.  loy.) 

"Every  keeper  of  a  prison,  sherifif,  deputy  sherifif, 
constable,  or  jailer,  or  person  employed  as  a  guard, 
who  fraudulently  contrives,  procures,  aids,  connives 
at,  or  voluntarily  permits  the  escape  of  any  prisoner 
in  custody,  is  punishable  by  imprisonment  in  the  state 
prison  not  exceeding  ten  years,  and  fine  not  exceed- 
ing ten  thousand  dollars."  {California.  Pen.  Code, 
sec.    108.) 

Every  person  who  willfully  assists  any  prisoner 
confined  in  any  prison  or  in  the  lawful  custody  of 
any  officer  or  prison  to  escape,  or  in  an  attempt  to 
escape,  from  such  prison  or  custody,  is  punishable 
by  imprisonment  in  the  state  prison  not  exceeding 
ten  years,  and  fine  not  exceeding  ten  thousand  dol- 
lars.     {California.    Pen.  Code,  sec.  109.) 

§  783.  Escape — Computation  of  term.  An  un- 
authorized release  or  departure  of  a  prisoner  with- 
out discharge  in  due  course  of  law  is,  in  efifect,  a 
technical  escape,  and  the  time  of  his  absence  cannot 
be  computed  as  any  part  of  the  term  of  imprisonment. 
{Ex  parte  Vance,  90  Cal.  208,  27  Pac.  209,  13  L.  R. 
A-  574-) 

§  784.     Credits  allowable  to  prisoners.      By  the 

provisions  of  section  1614  of  the  Penal  Code  of  Cali- 
fornia, as  amended  in  1893,  "for  each  month  in  which 
the  prisoner  appears,  by  the  record,  to  have  given  a 
cheerful  and  willing  obedience  to  the  rules  and  regu- 
lations, and  that  his  conduct  is  reported  by  the  officer 
in  charge  of  the  jail  to  be  positively  good,  five  days 
shall,  with  the  consent  of  the  board  of  supervisors, 
be  deducted  from  his  term  of  sentence." 


485  COUNTY  JAIL.  §§  785-787 

§  785.  Inhumanity  to  prisoners.  "Every  officer 
who  is  guilty  of  willful  inhumanity  or  oppression 
toward  any  prisoner  under  his  care  or  in  his  custody, 
is  punishable  by  fine  not  exceeding  two  thousand  dol- 
lars, and  by  removal  from  office."  {California.  Pen. 
Code,  sec.  147.) 

§  786.  Carrying  articles  to  prisoners.  Every 
person  who  carries  or  sends  into  a  prison  anything 
useful  to  aid  a  prisoner  in  making  his  escape,  with 
intent  thereby  to  facilitate  the  escape  of  any  pris- 
oner confined  therein,  is  punishable  by  imprison- 
ment in  the  state  prison  not  exceeding  ten  years  and 
fine  not  exceeding  ten  thousand  dollars.  (California. 
Pen.  Code,  sees.   108-110.) 

§  787.  Injuring  jails.  "Every  person  who  will- 
fully and  intentionally  breaks  down,  pulls  down,  or 
otherwise  destroys  or  injures  any  public  jail  or  other 
place  of  confinement,  is  punishable  by  fine  not  ex- 
ceeding ten  thousand  dollars,  and  by  imprisonment 
in  the  state  prison  not  exceeding  five  years."  {Cali- 
fornia.   Pen.  Code,  sec.  606.) 


CHAPTER    XXXI. 

FEES  AND  SALARIES. 

§  788.  Fees  and  salaries,  generally. 

§  789.  Salaries  of  deputies. 

§  790.  Deputies  for  new  courts. 

§  791.  Must  require  prepayment  of  fees. 

§  792.  Receipt  for  fees  to  be  given. 

§  793.  Fee  book  to  be  kept. 

§  794.  Prepayment  of  expense  of  publication. 

§  795.  Mileage — How  computed. 

§  796.  Keeper's  fees  to  be  allowed. 

§  797-  Officer's  lien  for  fees. 

§  798.  Change  of  sheriffs — Fees  on  release. 

§  799-  Fees  of  coroner  or  elisor. 

§  800.  Fees  of  citizen  for  service. 

§801.  Penalty  for  receiving  illegal  fees. 

§  802.  Settlement  before  drawing  salary. 

§  803.  Division  of  county — Salaries. 

§  804.  Salary  during  erroneous  suspension. 

§  805.  Conveying  prisoners  and  insane  persons. 

§  806.  Sheriff  entitled  to  salvage. 

§  807.  Expenses  in  pursuit  of  criminals. 

§  808.  No  mileage  for  unsuccessful  pursuit. 

§  809.     Increase  of  compensation  during  term. 

§  810.     Salaries  of  constables — How  fixed. 

§811.     Bill  against  county  to  be  itemized. 

§  812.     Fraudulent  bills  against  county. 

§  813.     Allowance  of  claims  against  the  county. 

§  814.     No  fees  in  habeas  corpus  cases. 

§  788.  Fees  and  salaries,  generally.  The  various 
statutes  regulating  fees  chargeable  by  and  salaries 
allowed  to  sherififs  and  constables  in  the  states  and 
territories  to  which  this  work  is  particularly  appli- 


487  FEES  AND  SALARIES.  §§  789-79 1 

cable  are  so  numerous  that  even  a  reference  to  the 
statutes  applicable  to  the  several  counties  —  much 
less  the  quoting  of  them  at  length — is  precluded  by 
the  necessary  limitations  upon  such  a  work  as  the 
present.  In  some  states,  as  in  California,  a  different 
fee  bill  exists  for  nearly  every  county;  an  equal  di- 
versity is  found  in  the  salary  list,  and  both  are  the 
subject  of  frequent  legislative  change.  Every  officer, 
however,  is  presumed  to  be  familiar  with  the  fee  bill 
of  his  own  county,  and,  in  each  case,  the  officer  will 
find  the  appropriate  statute  easily  accessible. 

§  789.  Salaries  of  deputies.  Where  the  sheriff 
is  allowed  by  law  a  salary  in  gross  for  all  services 
rendered  by  him  and  his  deputies  in  performing  the 
official  duties  of  sheriff,  as  in  California,  he  may  of 
course  make  his  own  terms  as  to  the  salaries  to  be 
paid  to  his  deputies,  except  as  to  salaries  of  addi- 
tional deputies,  fixed  by  law  and  payable  out  of  the 
county  treasury. 

For  a  reference  to  the  statutory  authority  for  addi- 
tional deputies  in  California  see  "Index  to  Laws  of 
California,"  title  "Sheriff-Deputies." 

§  790.  Deputies  for  new  courts.  When  addi- 
tional deputies  are  appointed,  as  authorized  upon  in- 
crease of  the  number  of  superior  judges,  the  salary 
of  each  deputy  is  $125  per  month.  (California.  Stat- 
utes 1893,  P-  507-) 

§  791.    Must  require  prepayment  of  fees.     The 

sheriff  is  not  to  perform  any  official  services,  except 
in  cases  of  habeas  corpus,  unless  upon  the  prepayment 
of  the  fees  prescribed  for  such  services;  and  on  such 


§§  792,  793       SHERIFFS  AND  CONSTABLES.  488 

payment  he  must  perform  the  services  required. 
(California.  County  Govt.  Bill,  sec.  223  ;  Stats.  1893, 
p.  510.) 

The  statute  which  declares  that  "any  officer  may 
refuse  to  perform  any  services  in  a  civil  action  or  pro- 
ceeding, until  the  fee  for  such  service  is  paid"  is  not 
to  be  construed  as  prohibiting  the  officer  from  per- 
forming the  service  without  prepayment  of  fees,  but 
as  permissive  merely,  leaving  the  alternatives  of  cash 
in  advance  or  credit  to  his  own  election.  If,  when 
services  are  demanded  of  an  officer,  he  fails  to  de- 
mand his  fees  in  advance,  his  obligation  to  perform 
the  duty  required  is  the  same  as  it  would  be  if  the 
fees  were  prepaid  or  tendered  in  advance.  [Lick  v. 
Madden,  25  Cal.  202.) 

§  792.  Receipt  for  fees  to  be  given.  Upon  re- 
ceiving any  fees  for  official  duty  or  service,  the  sherifif 
"may  be  required  by  the  person  paying  the  same  to 
make  out  in  writing,  and  deliver  to  such  person,  a 
particular  account  of  such  fees,  specifying  for  what 
they  respectively  accrued,  and  shall  receipt  the  same; 
and  if  he  refuse  or  neglect  to  do  so  when  required, 
he  shall  be  liable  to  the  party  paying  in  treble  the 
amount  so  paid."  {California.  County  Govt.  Bill, 
sec.  224,  Stats.  1893,  p.  510.) 

§  793-  f  ®®  book  to  be  kept.  The  sherifif  "must 
keep  a  fee  book,  open  to  public  inspection  during 
office  hours,  in  which  must  be  entered,  at  once  and 
in  detail,  all  fees  or  compensation  of  whatever  nature, 
kind  or  description,  collected  or  chargeable.  On  the 
first  Monday  of  each  and  every  month,  he  must  add 
up  each  column  in  his  book  to  the  first  day  of  the 


489  FEES   AND   SALARIES.  §§  794-796 

month,  and  set  down  the  totals.  On  the  expiration 
of  his  term,  he  must  deliver  all  fee  books  kept  by 
him  to  the  county  auditor."  {California.  County 
Govt.  Bill,  sec.  218;  Stats.  1893,  p.  509.) 

§  794.     Prepayment   of   expense   of   publication. 

"When,  by  law,  any  publication  is  required  to  be 
made  by  an  officer,  of  any  suit,  process,  notice,  order 
or  other  paper,  the  costs  of  the  same  shall  be  first  ten- 
dered by  the  party,  if  demanded,  for  whom  such 
order  of  publication  was  granted,  before  the  officer 
shall  be  compelled  to  make  such  publication." 
{California.    Stats.  1869- 1870,  p.  180,  sec.  T,J.) 

§  795.  Mileage — How  computed.  When  the  stat- 
ute allows  to  the  officer  certain  mileage  "for  every 
mile  necessarily  traveled,  in  going  only,  in  executing 
any  warrant  of  arrest,  subpoena  or  venire,  .  .  .  tak- 
ing prisoners  before  a  magistrate,"  the  execution  of 
the  warrant  of  arrest  and  the  taking  before  a  magis- 
trate are  "separate  and  distinct  acts  to  be  done  by 
the  officer,"  and  he  is  entitled  to  mileage  both  ways. 
{Cunningham  v.  San  Joaquin  County,  49  Cal.  323; 
Allen  V.  Napa  County,  82  Cal.  187,  23  Pac.  43; 
Nelson  V.  Breen,  98  Cal.  245,  33  Pac.  85.) 

§  796.  Keeper's  fees  to  be  allowed.  When  the 
statute  provides,  as  in  California,  that  "for  his  trouble 
and  expense  in  taking  and  keeping  possession  of  and 
preserving  property  under  attachment  or  execution 
or  other  process,"  the  sheriff  shall  be  entitled  to  "such 
sum  as  the  court  may  order;  provided  that  no  more 
than  two  dollars  per  diem  shall  be  allowed  to  a 
keeper,"  the  sheriff  is  not  entitled  to  any  fees  for  such 


§§  797-8oo       SHERIFFS  AND  CONSTABLES.  490 

services  unless  the  court  makes  an  order  allowing 
them.  (Shunncay  v.  Leakey,  73  Cal.  260,  14  Pac. 
841.    See,  also,  sees.  251,  252,  ante.) 

The  sheriff  is  entitled  to  collect  for  his  expenses 
in  keeping  property  under  levy  only  for  such  period 
as  the  property  was  lawfully  in  his  possession.  {Sam 
Yuen  V.  McMann,  99  Cal.  497,  34  Pac.  80.) 

§  797.  Officer's  lien  for  fees.  A  statute  which 
provides  that  the  officer  may  retain  attached  prop- 
erty until  his  fees  are  paid  in  effect  gives  him  a  lien 
for  their  amount,  which  he  may  enforce  "in  any 
suitable  mode."  {Perrin  v.  McMann,  97  Cal.  52, 
31  Pac.  837.) 

§  798.     Change    of    sheriffs  —  Fees    on    release. 

When  a  sheriff  goes  out  of  office  holding  attached 
property  in  his  possession,  the  party  wishing  to  pro- 
cure a  release  must  seek  him  and  pay  his  fees  in  full 
up  to  the  time  of  the  release.  {Perrin  v.  McMann, 
97  Cal.  52,  31  Pac.  837.) 

§  799.  Fees  of  coroner  or  elisor.  "Whenever 
process  is  executed  or  any  act  performed  by  a  coro- 
ner or  elisor,  in  the  cases  provided  by  law  in  that  be- 
half, he  shall  be  entitled  to  a  reasonable  compensa- 
tion, to  be  fixed  by  the  court."  {California.  County 
Govt.  Act,  sec.  109;  Stats.  1893,  p.  374.) 

§  800.  Fees  of  citizen  for  service.  When  sum- 
mons or  subpoena  is  served  in  California  by  a  per- 
son other  than  the  sheriff,  under  authority  of  the 
statute,  such  person  shall  be  allowed  such  sum  as 
the  court  may  think  proper,  not  exceeding  the  amount 
allowed  sheriffs  by  law.     {Stats.  1891,  />.  56.) 


491 


FEES  AND   SALARIES.  §§801-803 


§801.  Penalty  for  receiving  illegal  fees.  "Every 
executive  or  ministerial  officer  who  knowingly  asks 
or  receives  any  emolument,  gratuity,  or  reward,  or 
any  promise  thereof,  excepting  such  as  may  be  au- 
thorized by  law,  for  doing  any  official  act,  is  guilty  of 
a  misdemeanor."     (California.    Pen.  Code,  sec.  yo.) 

The  board  of  supervisors,  upon  receiving  a  certi- 
fied copy  of  the  record  of  conviction  of  an  officer 
for  receiving  illegal  fees,  must  declare  his  office  va- 
cant. (California.  County  Govt.  Bill,  sec.  226; 
Stats.  1893,  p.  510.) 

§  802.     Settlement   before    drawing    salary.      In 

California  the  sherifif  is  not  entitled  to,  and  the  au- 
ditor must  not  draw  his  warrant  for,  monthly  salary 
until  he  has  produced  the  certificate  of  the  county 
treasurer  showing  that  he  has  paid  into  the  treasury 
the  fees  allowed  by  law  for  the  preceding  month, 
except  such  fees  as  are  a  charge  against  the  county, 
accompanied  by  a  statement  of  the  aggregate  amount 
thereof,  as  shown  by  the  fee  book,  duly  verified  by 
him  by  his  affidavit  in  the  form  prescribed  by  law. 
(California.  County  Govt.  Bill,  sees.  217,  219,  222; 
Stats.  1893,  pp.  508-510.) 

§  803.  Division  of  county — Salaries.  "When  the 
population  of  any  existing  county  shall  have  been 
reduced,  by  reason  of  the  creation  of  any  new  county 
from  the  territory  thereof,  below  the  class  and  rank 
first  assumed,  .  .  .  the  salary  of  county  officers,  the 
salaries  of  their  deputies,  clerks  or  assistants,  and  the 
number  of  such  deputies,  clerks  or  assistants,  shall  in 
no  way  be  afifected  by  reason  of  such  division  of  the 
county  or  order  of  the  board  of  supervisors  for  the 


§§  8o4,  805       SHERIFFS  AND  CONSTABLES.  492 

term  for  which  they  were  elected  and  shall  have 
qualified.  ...  In  all  newly  created  counties,  for  the 
purpose  of  fixing  the  salaries  and  fees  of  county  and 
township  officers,  the  board  of  commissioners  ap- 
pointed to  organize  said  new  county,  and  if  no  com- 
missioners be  appointed,  then  the  board  of  supervisors 
of  said  new  county,  shall  classify  said  new  county." 
(California.  County  Govt.  Bill,  sec.  235;  Stats. 
1893, />•  512.) 

§  804.  Salary  during  erroneous  suspension.  Pro- 
vision is  sometimes  made  by  statute  for  the  removal 
of  public  officers  for  willful!  misconduct.  (Stats. 
1893,  p.  510.)  After  judgment  of  removal  and 
reversal  of  the  same  on  appeal,  the  ofiicer  is  entitled 
to  his  salary  during  the  time  of  his  suspension  by  the 
erroneous  judgment,  even  though  another  person  has 
been  paid  for  performing  the  duties  of  the  ofiice  in 
the  mean  time.  (Ward  v.  Marshall,  96  Cal.  155,  31 
Am.  St.  Rep.  198,  30  Pac.  1113.) 

§  805.    Conveying  prisoners  and  insane  persons. 

The  sheriff  is  entitled  "to  receive  and  retain  for  his 
own  use  five  dollars  per  diem  for  conveying  prisoners 
to  and  from  the  state  prisons  and  for  conveying  per- 
sons to  and  from  the  insane  asylums  or  other  state 
institutions,  also  all  expenses  necessarily  incurred  in 
conveying  insane  persons  to  and  from  insane  asylums, 
and  in  conveying  persons  to  and  from  the  state  pris- 
ons, which  per  diem  and  expenses  shall  be  allowed 
by  the  board  of  examiners  and  collected  from  the 
state."  (California.  *S/rt/j.  1893, />.  507;  .S/a/j.  1889, 
p.  200.) 


493  FEES  AND  SALARIES.  §§  8o6,  807 

When  the  salary  of  the  sheriff  is  fixed  by  law,  "in 
full  compensation  for  all  services  rendered,"  etc., 
and  he  is  required  to  pay  into  the  county  treasury  all 
"fees  ...  of  whatever  kind  or  nature,"  a  statute  al- 
lowing him,  out  of  the  state  treasury,  expenses  and 
per  diem  for  transportation  of  prisoners  and  insane 
persons  does  not  authorize  him  to  appropriate  such 
sums  to  his  own  use  in  adidtion  to  his  salary  unless 
expressly  authorized.  {Santa  Clara  County  v.  Bran- 
ham,  yy  Cal.  592,  20  Pac.  75.)  Since  the  decision  in 
this  case  the  California  statute  has  been  amended  as 
above  stated,  so  as  to  allow  all  such  sums  to  the  sheriff 
"for  his  own  use." 

§  806.  Sheriff  entitled  to  salvage.  "Sheriffs  and 
all  persons  employed  by  them,  or  aiding  in  the  re- 
covery and  preservation  of  wrecked  property,  are 
entitled  to  a  reasonable  allowance  as  salvage  for 
their  services,  and  to  all  expenses  incurred  by  them 
in  the  performance  of  such  services,  out  of  the  prop- 
erty saved;  and  the  officer  having  the  custody  of  such 
property  must  detain  it  until  the  same  are  paid  or 
tendered.  But  the  whole  salvage  claimed  must  not 
exceed  one  half  of  the  value  of  the  property  or  pro- 
ceeds on  which  it  is  charged;  and  every  agreement, 
order,  or  adjustment  allowing  a  greater  salvage  is 
void,  unless  ordered  and  allowed  by  the  county 
judge."     (California.     Pol.  Code,  sec.  2404.) 

§  807.    Expenses  in  pursuit  of  criminals.     "The 

board  of  supervisors  shall  allow  to  the  sheriff  his 
necessary  expense  for  pursuing  criminals  or  transact- 
ing any  criminal  business  without  the  boundaries  of 
his  county."     (California.    Stats.  1893,  p.  507.) 


§§8o8-8lI        SHERIFFS   AND   CONSTABLES.  494 

§  808.  No  mileage  for  unsuccessful  pursuit.  Un- 
der a  statute  fixing  the  mileage  of  the  sheriff  in  crim- 
inal cases  and  providing  that  the  supervisors  shall 
allow  him  "his  necessary  expenses  for  pursuing  crim- 
inals," he  is  not  entitled  to  collect  mileage  for  the 
distance  traveled  in  an  unsuccessful  search  for  per- 
sons charged  with  crime,  although  the  persons  are 
subsequently  found  and  arrested  by  him  upon  a  sec- 
ond search,  "though  possibly  he  might  rightly  claim 
pay  for  his  necessary  expenses."  {Overall  v.  Tulare 
County,  TOO  Cal.  61,  34  Pac.  519.) 

§  809.    Increase    of    compensation    during    term. 

Article  II,  section  9  of  the  constitution  of  California 
provides  that  "the  compensation  of  any  county,  city, 
town  or  municipal  officer  shall  not  be  increased  after 
his  election,  or  during  his  term  of  office";  but  by  this 
provision  it  is  only  the  compensation  for  services  to 
be  rendered,  and  not  traveling  and  other  incidental 
expenses  of  the  office,  that  are  forbidden  to  be  raised. 
(Kirkivood  V.  Soto,  87  Cal.  394,  25  Pac.  488.) 

§  810.  Salaries  of  constables  not  to  be  fixed  by 
supervisors.  A  constitutional  provision  for  the 
regulation  by  the  legislature  of  the  compensation  of 
officers  therein  named  is  mandatory,  and  such  regu- 
lation cannot  be  delegated  to  the  board  of  super- 
visors, e.  g.,  the  fixing  of  the  salaries  of  constables 
in  California.  {People  ex  rel.  Atkinson  v.  Johnson, 
95  Cal.  471,  31  Pac.  611.) 

§  81 1.  Bill  against  county  to  be  itemized.  "The 
board  of  supervisors  must  not  hear  or  consider  any 
claim  in  favor  of  any  person,  corporation,  company 


495 


FEES  AND   SALARIES.  §§812-814 


or  association  against  the  county,  nor  shall  the  board 
credit  or  allow  any  claim  or  bill  against  the  county 
or  district  fund,  unless  the  same  be  itemized,  giving 
names,  dates  and  particular  services  rendered;  char- 
acter of  process  served;  upon  whom;  distance  trav- 
eled ;  where  and  when ;  character  of  work  done ;  num- 
ber of  days  engaged;  materials  furnished;  to  whom; 
and  quantity  and  price  paid  therefor,  duly  verified 
as  to  its  correctness,  and  that  the  amount  claimed  is 
justly  due,  is  presented  and  filed  with  the  clerk  of 
the  board  within  a  year  after  the  last  item  of  the 
account  or  claim  accrued."  (California.  County 
Govt.  Bill,  sec.  41  ;  Stats.  1893,  p.  363.) 

§  812.    Fraudulent  bills  against  county.      If   the 

sheriff  present  to  the  board  of  supervisors  any  false 
or  fraudulent  claim,  bill,  account,  voucher,  or  writ- 
ing, he  is  guilty  of  a  felony.  (California.  Pen. 
Code,  sec.  72.) 

§  813.    Allowance  of  claims  against  the  county. 

All  accounts  of  the  sheriff  for  services  performed  by 
him  and  chargeable  against  the  county  must  be  pre- 
sented to  and  allowed  by  the  board  of  supervisors  in 
the  same  manner  as  other  claims.     (California.  Stats. 

1893,/'-  SII-) 

§  814.  No  fees  in  habeas  corpus  cases.  It  is  usu- 
ally provided  by  statute  that  no  fees  are  to  be  col- 
lected for  the  service  of  any  process  in  habeas  corpus, 
or  no  provision  is  made  in  the  respective  fee  bills  for 
the  collection  of  any  fees.     (California.    Pen.  Code, 

s^c-  4333-) 


CHAPTER  XXXII. 

SHERIFFS'  AND   CONSTABLES'   FORMS. 

Note. — These  fomis  are  adapted  to  the  practice  in  Cahfor- 
nia.  In  other  states  care  should  be  taken  to  make  such  changes 
as  may  be  necessary  to  conform  them  to  the  local  statutes.  A 
full  list  and  index  of  these  forms  will  be  found  at  the  end  of 
this  volume. 

§815.     Return    on    summons  —  One    defendant. 

{California.) 

Sheriffs  Office,    Kg 
County  of  ...  .    J 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  T  received  the  within  summons  on  the 
....  day  of  .  .  .  .,  19.  .,  and  personally  served  the 
same  upon  John  Doe,  the  within  named  defendant, 
by  delivering  to  and  leaving  with  said  defendant,  per- 
sonally, in  the  County  of  .  .  .  .,  on  the  ....  day  of 
.  .  .  .,  19.  .,  a  copy  of  said  summons,  attached  to  a 
copy  of  the  complaint  referred  to  in  said  summons. 

Dated ,  19.  . 

,  Sheriff, 

By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $.  .  .  . 

Note.. — Although  the  language  of  the  statute  does  not  in 
express  terms  declare  that  the  copy  of  summons  delivered  to  a 
defendant  must  be  left  with  him,  yet  it  is  obvious  that  the 
spirit  of  the  law  would  be  violated  if  the  copy  were  imme- 
diately taken  from  the  defendant  by  the  person  making  the 
service;  and  it  is  therefore  deemed  best  that  the  return  of 
service  should  show  that  not  only  the  letter  of  the  law,  but 
its  intent,  has  been  complied  with. 


497  FORMS.  §§816,817 

§  8 1 6.    Return  on  summons — Several  defendants. 

{California.) 

Sheriff's  Office,  1  ^^ 
County  of  ....   J 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  received  the  within  summons  on  the 
....  day  of  .  .  .  .,  19.  .,  and  personally  served  the 
same  upon  the  hereinafter  named  defendants  by  de- 
livering to  and  leaving  with  each  of  said  defendants, 
personally,  in  the  County  of  ....,  at  the  time  set 
opposite  their  names,  respectively,  a  copy  of  said 
summons  attached  to  a  copy  of  the  complaint  referred 
to  in  said  summons. 
Names  of  Defendants  Served.  Time  of  Service. 


Dated, ,  19. . 

,  Sheriff, 

By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $.  .  .  . 

§  8 1 7.    Return  on  summons  —  Some  defendants 
not  served.       {California.) 

Sheriff's  Office, 


County  of  ' 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  received  the  within  summons  on  the 
....  day  of  .  .  .  .,  19.  .,  and  personally  served  the 
same  upon  John  Doe,  one  of  the  within  named  de- 
fendants, by  delivering  to  and  leaving  with  said  John 
Doe,  personally,  in  the  County  of  .  .  .  .,  on  the  .... 
day  of  .  .  .  .,  19.  .,  a  copy  of  said  summons,  attached 
to  a  copy  of  the  complaint  referred  to  in  said  sum- 
mons. 


§  8l8  SHERIFFS  AND  CONSTABLES.  498 

And  I  further  certify  that,  after  due  search  and 
diligent   inquiry,    I    have   been    unable   to    find   the 

within  named in  ....  County. 

Dated, ,  19.  . 

,  Sheriff, 

By   ,  Deputy  Sherifif. 

Sheriff's  Fees,  $.  .  .  . 

§  818.    Return  on  summons  served  on  local  cor- 
poration.     ( California. ) 

Sherifif^s  Office,  1    ^ 
County  of  ....   J 

I, ,  Sherifif  of  the  County  of ,  hereby 

certify  that  I  received  the  within  summons  on  the 
....  day  of  .  .  .  .,  19.  .,  and  personally  served  the 
same  upon  the  Mud  Springs  Clay  Bank,  a  corpora- 
tion, by  delivering  to  and  leaving  with  Simon  Sudds, 
the  president  of  said  The  Mud  Springs  Clay  Bank, 
a  corporation,  in  the  County  of  .  .  .  .,  on  the  .... 
day  of  .  .  .  .,  19.  .,  a  copy  of  said  summons;  and  that 
the  copy  so  delivered  to  and  left  with  said  Simon 
Sudds,  as  president  of.  .  .  .,  said  defendant,  was  at- 
tached to  a  copy  of  the  complaint  referred  to  in  said 
summons. 

Dated, ,  19.  . 

,  Sherifif, 

By   ,   Deputy  Sherifif. 

Sheriff's  Fees,  $.  .  .  . 

Note. — In  California,  the  summons,  in  a  suit  against  a  cor- 
poration formed  under  the  laws  of  the  state,  must  be  delivered 
to  the  president  or  other  head  of  the  corporation,  secretary, 
cashier,  or  managing  agent  thereof.  The  teller  of  a  bank  is 
not  the  managing  agent.     If  the  suit  is  against  a  foreign  cor- 


499 


FORMS.  §819 


poration,  or  a  non-resident  joint  stock  company  or  association, 
the  summons  must  be  delivered  to  the  managing  or  business 
agent,  cashier,  or  secretary.  (California.  Code  Civ.  Proc, 
sec.  411.    See,  also,  sees.  104-106,  ante.) 


§  819.  Return  on  summons  served  on  minor  and 
administratrix.  {California.  See,  also,  sees.  104, 
107,  ante.) 

Sheriff's  Office, 


County  of  ^ 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  received  the  within  summons  on  the 
....  day  of  .  .  .  .,  19.  .,  and  personally  served  the 
same  on  the  ....  day  of  .  .  .  . ,  1 9 .  . ,  on  Ellen  B  rown, 
and  also  on  Ellen  Brown  as  administratrix  of  the 
estate  of  James  Brown,  deceased,  and  also  on  Nellie 
B.  Brown,  a  minor  under  the  age  of  fourteen  years, 
and  also  on  Kate  T.  Brown,  defendants  named  in  said 
summons,  by  delivering  to  and  leaving  with  said 
Ellen  Brown,  personally,  and  in  her  own  right,  in 

said   County,  a  copy  of  said  summons,  with 

a  copy  of  the  complaint  in  the  action  named  therein, 
and  by  delivering  to  and  leaving  with  said  Ellen 
Brown  as  administratrix  of  the  estate  of  James 
Brown,  deceased,  personally,  in  said  county,  a  copy 
of  said  summons,  and  by  delivering  to  and  leaving 
with  said  Ellen  Brown,  personally,  as  the  mother 
of  ^defendant  Nellie  B.  Brown,  a  minor  under 
the  age  of  fourteen  years,  in  said  county,  a  copy  of 
said  summons,  and  by,  at  the  same  time,  delivering 
to  and  leaving  with  said  Nellie  B.  Brown,  a  minor, 
as  aforesaid,  personally,  a  copy  of  said  summons,  and 
by  delivering  to  and  leaving  with  the  defendant,  Kate 


§§820,821       SHERIFFS  AND  CONSTABLES.  50O 

T.  Brown,  personally,  in  said  county,  a  copy  of  said 
summons. 

Dated ,  19.  . 

,  Sheriff, 

By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $.  .  .  . 

§  820.    Return  on  summons — Defendant  of  un- 
sound mind.       {California.) 

Sheriff's  Office,  1    ^ 
County  of  ....   J 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  received  the  within  summons  on  the 
.  .  .  .day  of  .  .  .  .,  19.  .  .  .,  and  personally  served  the 
same  upon  John  Doe,  the  within  named  defendant, 
by  delivering  to  and  leaving  with  said  John  Doe, 

personally,  in  the  County  of ,  on  the  ....  day 

of  .  .  .  .,  19.  .,  a  copy  of  said  summons,  and  by  deliv- 
ering to  and   leaving  with   Richard  Roe,  guardian 

of  said  John  Doe,  personally,  in  the  County  of , 

on  the  ....  day  of  .  .  .  .,  19.  .,  a  copy  of  said  sum- 
mons; and  that  the  copy  so  delivered  to  and  left  with 
said  John  Doe  was  attached  to  a  copy  of  the  com- 
plaint referred  to  in  said  summons. 

Dated  .  .  .  .,  19.  . 

,  Sheriff, 

By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $.  .  .  . 

§821.     Return    on    summons    where    defendant 
cannot  be  found.       {California.) 
Sheriff's  Office, 


County  of  .  .        ' 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  received  the  within  summons  on  the 


50I  FORMS.  §  822 

....   day  of  .  .  .  .,   19.  .,  and  that  after  due  search 
and  diligent  inquiry  I  have  been  unable  to  find  the 

within  named  defendant,  Peter  Jones,  in   

County. 

Dated  .  .  .  .,  19.  .  ' 

,  Sheriff, 

By   ,  Deputy  Sherifif. 

Sheriff's  Fees,  $.  .  .  . 


§  822.    Return  of  summons  by  person  other  than 

officer.      [California.    See,  also,  sees.  794-798,  ante.) 

In  the  Superior  Court,  County  of   ,  State 

of 

James  Boggs       1 

vs.  V 

Richard  Roggs.  J 

Roothog  R.  Dye,  being  duly  sworn,  deposes  and 
says:  That  he  is,  and  at  all  times  mentioned  herein 
was,  of  the  age  of  eighteen  years  and  over,  and  not 
a  party  to  the  within  action;  that  he  received  the 
within  annexed  summons  on  the  ....  day  of  .  .  .  ., 
19.  .,  and  personally  served  the  same  upon  Richard 
Roggs,  the  within  named  defendant,  on  the  ....  day 
of  .  .  .  .,  19.  .,  by  delivering  to  and  leaving  with  said 
Richard  Roggs,  said  defendant,  personally,  in  the 

County  of ,  a  copy  of  said  summons,  attached 

to  a  copy  of  the  complaint  referred  to  in  said  sum- 
mons. Roothog   R.   Dye. 
Subscribed  and  sworn  to      "| 

before  me,  this    > 

day  of  . . . .,  19. .  ) 


§§  823,  824       SHERIFFS  AND  CONSTABLES.  502 

§  823.  Return  on  justice^s  court  summons.  {Cal- 
ifornia.) 

County  of ,  )    ^ 

Township,    j 

I  hereby  certify  that  I  received  the  within  sum- 
mons on  the  ....  day  of  .  .  .  .,  19.  .,  and  personally 
served  the  same  by  delivering  to  and  leaving  with 

,  the  defendant  named  herein,  personally,  a 

true  copy  of  this  summons,  attached  to  a  true  copy 

of  the  complaint  herein,  in Township, 

County,  this  ....  day  of  .  .  .  .,  19.  . 

,  Constable. 

By   ,  Deputy. 

Fees,  $.  .  . . 

§  824.  Return  on  justice's  court  summons  from 
another  county.       (California.) 

Sheriff's  Office,    1  ^^ 
County  of  ...  .    J 

I  hereby  certify  that  I  received  the  within  sum- 
mons  and  certificate  of  the   County  Clerk  of   the 

County  of   ,  on  the  ....   day  of   .  .  .  .,  19.  .  ; 

that  at  the  said  County  of ,  on  this  day  of  .  .  .  . , 

19.  .,  I  personally  served  said  summons  on   , 

the  within  named  defendant,  by  delivering  to  and 
leaving  with  him,  personally,  a  copy  of  said  sum- 
mons and  clerk's  certificate  attached  thereto,  and  a 
copy  of  the  complaint  referred  to  in  said  summons, 
also  attached  thereto. 

Dated  .  .  .  .,  19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $.  .  .  . 


503  FORMS.  §§  825,  826 

§  825.     Return     on     subpoena     in     civil     cases. 

(California.) 
Sheriff's  Office, 


County  of  ....  / 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  served  the  within  subpoena,  by  showing 
the  said  within  original  to  each  of  the  following  per- 
sons named  therein,  and  delivering  a  true  copy  there- 
of to  each  of  said  persons,  personally,  on  the   .... 

day  of  .  .  .  . ,  A.  D.  1 9 .  . ,  at  the  ....  County  of , 

to  wit : ,  who  did  not  demand  fees,  and , 

who  demanded  and  received  ....  fees,  $.  .  .  . 

Dated,  .  .  .  .,  19.  . 
Sheriff's  Fees,  $ ,  Sheriff. 

Service,  $.  .  .  .         By   ,  Deputy  Sheriff. 

Mileage,  $.  .  .  . 

Total,  $.... 

§  826.     Return   by  citizen  on  subpoena  —  Civil 
case.     (California.) 
State  of 


County  of   ( 

,  being  duly  sworn,  says:    That  he  served 

the  within  subpoena,  by  showirtg  the  said  within  orig- 
inal to  each  of  the  following  persons  named  therein, 
and  delivering  a  true  copy  thereof  to  each  of  the  said 
persons,  personally,  on  the   ....   day  of   .  .  .  .,  x^.  D. 

19.  .,  at  the  said  County  of ,  to  wit: , 

who  did  not  demand  ....  fees,  and ,  who  de- 
manded and  received  ....  fees,  $.  .  .  . 

Subscribed  and  sworn  to  ^ 

before  me,  this    V 

day  of  .  .  .  .,  A.  D.  19.  .     ) 


§§  827,  828       SHERIFFS  AND  CONSTABLES.  504 

§  827.     Return    on    subpoena    in    criminal    case. 

{California.) 

State  of , 


County  of  "^ 

I, ,  Sherifif  of  the  County  of ,  hereby 

certify  that  I  served  the  within  subpoena,  on  the  .... 
day  of  .  .  .  .,  19.  .,  on  John  Doe,  Richard  Roe,  and 
Jane  Jenks,  being  the  witnesses  named  in  said  sub- 
poena, at  the  County  of ,  by  showing  the  orig- 
inal to  said  witnesses,  personally,  and  informing  them 
of  the  contents  thereof. 

Dated,  .  .  .  .,  19.  . 

,  Sherifif. 

By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $.  .  .  . 

§  828.    Return  on  attachment  of  personal  prop- 
erty.     ( California. ) 

Sheriff's  Office,  \  ^^ 
County  of  ....  J  ' 

I,    ,  Sheriff  of  the  County  of    ,  do 

hereby  certify  that  under  and  by  virtue  of  the  within 
and  hereunto  annexed  writ  of  attachment,  by  me  re- 
ceived on  the  ....  day  of  .  .  .  .,  19.  .,  I  did,  on  the 
....  day  of  ....,  19..,  attach  the  following  de- 
scribed personal  property  in  the  possession  of  .  .  .  ., 

viz.: (description  of  property),  and  attached 

the  same  by  taking  into  my  custody  {and  putting  a 
keeper  in  charge). 

Dated, ,  19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $ 


505  FORMS.  §§  829,  830 

§  829.     Return     on     attachment  —  Undertaking 
given.     (California.) 

Sheriff's  Office,  1  ^^ 
County  of  ....  J 

I  hereby  certify  that  I  received  the  within  writ  of 

attachment  on  the  ....  day  of  .  .  .  .,  A.  D.  19.  .,  and 

the  defendant  having  given  me  a  bond,  as  required 

in  said  writ,  in  an  amount  sufficient  to  satisfy  the 

demand,  besides  cost,  I  herewith  return  this  writ  ofy 

attachment  without  further  service. 

Dated,   ,   19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $ 

§  830.     Return    on    attachment    of    real    estate 
standing  in  defendant's  name — Property  occupied. 

{California.) 

Sheriff's  Office,  1    ^ 
County  of  ....   J      *  . 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  and  return  that  I  received  the  hereunto  an- 
nexed writ  of  attachment  on  the  ....  day  of  .  .  .  ., 
A.  D.  19.  .,  and,  by  virtue  of  the  same,  did  on  the  .... 
day  of  ....,  A.  D.  19..,  attach  all  the  right,  title, 
claim  and  interest  of  .  .  .  .,  defendant  (or  either  of 
them),  of,  in  and  to  the  following  described  real 
estate,  situated  in  said  County  of  .  .  .  .,  and  State  of 
....,  to  wit:  ....  (description  of  the  property). 
Said  real  estate  standing  on  the  records  of  said 
county  in  the  name  of  .  .  .  .,  was  attached  as  follows: 
By  filing  with  the  recorder  of  said  county  of  .  .  .  ., 
on  the  ....  day  of  .  .  .  . ,  A.  D.  1 9 .  . ,  a  copy  of  the  writ, 
together  with  a  description  of  the  property  attached, 


§  831  SHERIFFS  AND  CONSTABLES.  506 

and  a  notice  that  it  is  attached;  and  by  leaving  a 

similar  copy  of  the  writ,  description  and  notice  with 

an  occupant  of  the  property. 

Dated,   ,   19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $...  . 

§831.    Return     on    attachment    of    real    estate 
'ijstanding     in     defendant's     name  —  No     occupant. 

{California.) 
Sheriff's  Office, 


County  of 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  and  return  that  I  received  the  hereunto  an- 
nexed writ  of  attachment  on  the  ....  day  of  .  .  .  ., 
A.  D.  19.  .,  and,  by  virtue  of  the  same,  did  on  the  .... 
day  of  ....,  A.  D.  19..,  attach  all  the  right,  title, 
claim  and  interest  of  .  .  .  .,  defendant  (or  either  of 
them),  of,  in  and  to  the  following  described  real 
estate,  situated  in  said  County  of  .  .  .  .,  State  of  .  .  .  ., 
to  wit:  (description  of  the  property).  Said  real 
estate  standing  on  the  records  of  said  county  in  the 
name  of  ....,  was  attached  as  follows:  By  filing 
with  the  Recorder  of  said  County  of  .  .  .  .,  on  the 
.  .  .  .day  of  .  .  .  .,  A.  D.  19.  .,  a  copy  of  the  writ,  to- 
gether with  a  description  of  the  property  attached, 
and  a  notice  that  it  is  attached,  and  by  posting  a 
similar  copy  of  the  writ,  description  and  notice,  in 
a  conspicuous  place  on  the  property  attached,  there 
being  no  occupant. 

Dated,    19.  .  .  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $.... 


507  FORMS.  §  832 

§  832.     Return    on    attachment    of    real    estate 
standing  in  name  of  person  other  than  defendant. 

(California.) 

Sheriff's  Office,  1  ^^ 
County  of  ....  J 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  and  return  that  I  received  the  hereunto  an- 
nexed writ  of  attachment  on  the  ....  day  of .  .  .  . 
A.  D.  19 .  . ,  and,  by  virtue  of  the  same,  did,  on  the  .... 
day  of  ....  A.  D.  19..,  attach  all  the  right,  title, 
claim  and  interest  of  ....,  defendant.,  (or  either 
of  them)  of,  in  and  to  the  following  described  real 
estate,  situated  in  said  County  of  .  .  .  .,  and  State  of 
....,  to  wit:  ....  (description  of  the  property). 
Said  real  estate  standing  on  the  records  of  said  county 
in  the  name  of  John  Doe,  was  attached  as  follows : 
By  filing  with  the  Recorder  of  said  County  of  .  .  .  ., 
on  the  ....  day  of  .  .  .  . ,  A.  D.  1 9 .  . ,  a  copy  of  the  writ, 
together  with  a  description  of  the  property  attached, 
and  a  notice  that  all  the  right,  title  and  interest  of 
.  .  .  .,  said  defendant,  standing  on  the  records  of  said 
county  in  the  name  of  John  Doe  is  attached;  and  by 
leaving  a  similar  copy  of  the  writ,  description  and 
notice  with  an  occupant  of  the  property  {or,  as  the 
case  may  be,  posting  a  similar  copy  of  the  writ,  de- 
scription, and  notice  in  a  conspicuous  place  on  the 
property  attached,  there  being  no  occupant)  ;  and 
by  delivering  to  and  leaving  with  said  John  Doe  a 
similar  copy  of  the  writ,  description  and  notice. 

Dated,    ,   19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $.  .  .  . 


§  833  SHERIFFS  AND  CONSTABLES.  508 

Note. — When  the  property  attached  stands  on  the  records  in 
the  name  of  a  person  other  than  a  defendant,  a  copy  of  the  writ, 
description  and  notice  must  be  left  with  such  other  person  or  his 
agent,  if  known  and  within  the  county,  or  at  the  residence  of 
either,  if  within  the  county.  If  such  other  person  or  his  agent, 
or  the  residence  of  either,  cannot  be  found,  the  return  should 
state  the  fact  that,  "after  due  search  and  diligent  inquiry  I 
have  been  unable  to  find  said  John  Doe,  or  any  agent  of  his, 
or  any  residence  of  either  in   County." 

§  833.  Return  on  garnishment  on  individual  with 
statement  of  garnishee.      {California.) 

Sheriffs  Office, 


County  of  ' 

I,    ,  Sheriff  of  the  County  of    ,  do 

hereby  certify  and  return  that  I  received  the  here- 
unto annexed  writ  of  attachment  on  the  ....  day  of 
....,  19..,  and  by  virtue  thereof  I  have  duly  at- 
tached all  moneys,  goods,  effects,  debts  due  or  owing, 
or  any  other  personal  property  belonging  to  the  de- 
fendants therein  named,  or  either  of  them,  in  the 
possession  or  under  the  control  of  John  Jenks,  by 
delivering  to  and  leaving  with  said  John  Jenks,  per- 
sonally, in  ....  County,  on  the  ....  day  of  .  .  .  ., 
A.  D.  19.  .,  a  copy  of  said  writ  of  attachment  with  a 
notice  in  writing  indorsed  thereon  that  such  prop- 
erty was  attached  by  virtue  of  said  writ,  and  not  to 
pay  over  or  transfer  the  same  to  any  one  but  the  sher- 
iff of  ....  County,  or  some  one  legally  authorized  to 
receive  the  same.  I  also  demanded  a  statement  in 
writing  of  the  amount  of  the  same,  to  which  I  re- 
ceived the  following  answer: 


vs. 


509  FORMS.  §  509 

"To  notice  of  garnishment  and  demand  for  a  state- 
ment served  on  me,  this  ....  day  of  .  .  .  .,  A.  D.  19.  ., 

by  the  Sheriff  of County,  under  and  by  virtue 

of  an  ....  issued  in  the  above  entitled  cause,  my 
answer  is  that  I  am  ...  .  indebted  to  .  .  .  .,  said  de- 
fendant, in  the  sum  of  ....  dollars,  and  that  I  have 
in  my  possession  and  under  my  control  ....  personal 
property  belonging  to  said  defendant,  to  wit:  .... 
(description.)  (Signed)    ........" 

Dated,  ,   i9-  • 

,  Sheriff. 

By   ,  Deputy  Sherifif. 

Sheriff's  Fees,  $ 

§  834.    Return  on  garnishment  on  individual  who 
made  no  statement.      {California.) 

Sheriff's  Office,  1    ^ 
County  of  ....  J 

I,    ,   Sheriff  of  the  County  of    ,  do 

hereby  certify  and  return  that  I  received  the  here- 
unto annexed  writ  of  attachment  on  the  ....  day  of 
....,  19..,  and  by  virtue  thereof  I  have  duly  at- 
tached all  moneys,  goods,  effects,  debts  due  or  owing, 
or  any  other  personal  property  belonging  to  the  de- 
fendants therein  named  or  either  of  them,  in  the 
possession  or  under  the  control  of  Jacob  Jones,  by 
delivering  to  and  leaving  with  said  Jacob  Jones,  per- 
sonally, in  the  County  of  .  .  .  . ,  on  the  ....  day  of 
.  .  .  .,  19.  .,  a  copy  of  said  writ  of  attachment  with 
a  notice  in  writing  indorsed  thereon  that  such  prop- 
erty was  attached  by  virtue  of  said  writ,  and  not  to 
pay  over  or  transfer  the  same  to  any  one  but  the 
Sheriff  of  ....  County,  or  some  one  legally  author- 
ized to  receive  the  same.  I  also  demanded  a  state- 
ment in  writing  of  the  amount  of  the  same,  to  which 


§835  SHERIFFS  AND  CONSTABLES.  510 

said  Jacob  Jones  has  failed,  neglected  and  refused  to 

answer. 

Dated,   ,   i9-  • 

,  Sheriff. 

By   ,  Deputy  Sherifif. 

Sheriflf's  Fees,  $.  .  .  . 

§  835.     Return  on   garnishment  on  corporation. 

(California.) 
Sheriflf's  Office, 


County  of  ....   J      ' 

I,    ,   Sheriff  of  the  County  of    ,  do 

hereby  certify  and  return  that  I  received  the  here- 
unto annexed  writ  of  attachment  on  the  ....  day  of 
....,  19..,  and  by  virtue  thereof  I  have  duly  at- 
tached all  moneys,  goods,  efifects,  debts  due  or  owing, 
or  any  other  personal  property  belonging  to  the  de- 
fendants therein  named,  or  either  of  them,  in  the 
possession  or  under  the  control  of  The  First  National 
Bank  of  Tar  Flat,  by  delivering  to  and  leaving  with 
Oliver  Twist,  president  of  said  The  First  National 
Bank  of  Tar  Flat,  personally,  in  the  County  of  .  .  .  ., 

on  the day  of ,  A.  D.  19.  .,  a  copy  of  said 

writ  of  attachment,  with  a  notice  in  writing  indorsed 
thereon  that  such  property  was  attached  by  virtue  of 
said  writ,  and  not  to  pay  over  or  transfer  the  same 

to  any  one  but  the  Sheriff  of County,  or  some 

one  legally  authorized  to  receive  the  same.  I  also  de- 
manded a  statement  in  writing  of  the  amount  of  the 
same,  to  which  I  received  the  following  answer: 
(answer — Sec  sec.  833,  ante). 

Dated,   ,   i9-  • 

,  Sherifif. 

By   ,  Deputy  Sherifif. 

Sherifif's  Fees,  $ 


5 1  I  FORMS.  §  836 

§  836.  Return  on  execution — Levy  and  sale  of 
personal  property.      {California.) 

State  of '      Iss 

County  of  ...  .    J 

I,    ,   Sheriff  of  the  County  of    ,  do 

hereby  certify  that  under  and  by  virtue  of  the  within 
and  hereunto  annexed  writ  of  execution,  by  me  re- 
ceived on  the.  .  .day  of .  .  .,  A.  D.  19.  .,  I  did,  on  the.  . 
day  of  .  .,  A.  D.  19.  .,  levy  upon  the  personal  property 
hereinafter  described,  and  noticed  the  same  for  sale 
as  the  law  directs  (by  posting  written  notice  of  the 
time  and  place  of  sale),  particularly  describing  the 
property,  for  ....  days  successively,  in  three  public 
places  of  the  township  or  city  where  said  property 
was  sold,  and  on  .  .  .  .,  the  ....  day  of  .  .  .  .,  A.  D. 
19.  .,  at  ....  o'clock,  .  .  M.  of  said  day,  ....  (place 
of  sale),  in  said  county,  the  time  and  place  fixed  for 
said  sale,  I  did  attend  and  offered  for  sale  at  public 
auction,  for  United  States  gold  coin,  the  property 
described:  ....  (description).  And  sold  the  whole 
of  the  same  in  ....  separate  parcels  to  various  pur- 
chasers for  the  sum  of  ....  dollars,  in  United  States 
gold  coin,  said  purchasers  being  the  highest  bidders, 
and  said  sum  being  the  highest  bid,  in  the  aggregate, 
for  the  same;  and  I  have  given  such  purchaser,  .  .  .  ., 
a  certificate  of  said  sale.  (Here  state  satisfaction 
of  the  judgment,  or  otherwise,  as  indicated  in  form 
of  return  on  levy  and  sale  of  real  estate.  See  sec. 
837,  post.) 

And  I  further  certify  that  I  deducted  from  the 
said  sum  of  $.  .  .  .,  my  fees,  commission  and  expenses, 
amounting  to  the  sum  of  $.  .  .  .,  leaving  a  net  balance 


§837  SHERIFFS  AND  CONSTABLES.  512 

of  $....,  which  I  have  paid  to  plaintiff's  attorney, 

whose  receipt  therefor  is  hereto  attached. 

Dated,   ,   19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

§  837.    Return  on  execution — Levy  and   sale  of 
real  estate.      {California.) 
State  of , 


County  of  ....  ^ 

I,    ,  Sheriff  of  the  County  of    ,  do 

hereby  certify  that  under  and  by  virtue  of  the  within 
and  hereunto  annexed  writ  of  execution,  by  me  re- 
ceived on  the  ....  day  of  .  .  .  .,  A.  D.  19.  .,  I  did,  on 
the  ....  day  of  .  .  .  .,  A.  D.  19.  .,  levy  upon  the  lands 
hereinafter  described,  and  noticed  the  same  for  sale 
as  the  law  directs  (by  posting  written  notice  of  the 
time  and  place  of  sale,  particularly  describing  the 
property,  for  twenty  days  successively  in  three  public 
places  of  the  township  or  city  where  said  property 
is  situated,  and  also  where  said  property  was  to  be 
sold,  and  publishing  a  copy  thereof  once  a  week  for 
the  same  period  in  the  .  .  .  .,  a  newspaper  published 
in  said  County  of  ....),  and  on  .  .  .  . ,  the  ....  day 
of  .  .  .  .,  A.  D.  19.  .,  at  ....  o'clock  .  .  M.  of  said  day, 
in  front  of  the  Court  House  door  of  said  County,  the 
time  and  place  fixed  for  said  sale,  I  did  attend  and 
offered  for  sale  at  public  auction,  for  United  States 
gold  coin,  the  property  described:  ....  (descrip- 
tion). And  sold  the  whole  of  the  same  to  .  .  .  .,  for 
the  sum  of  ....  dollars,  in  United  States  gold  coin, 
said  ....  being  the  highest  bidder,  and  said  sum 
being  the  highest  bid  for  the  same;  and  I  have  given 
said  purchaser,   ,  .  .  .,  a  certificate  of  said  sale,  and 


513  FORMS.  §838 

have  filed  a  duplicate  thereof  for  record  with  the 
Recorder  of  said  County  of  .  .  .  .  ;  and  I  herewith 
return  said  writ  fully  satisfied.  (If  the  proceeds  of 
sale  do  not  satisfy  the  judgment,  omit  the  last  clause 
to  that  eflfect,  and  state  that,  "after  due  search  and 
diligent  inquiry,  I  have  been  unable  to  find  any  other 
property  belonging  to  the  within  named  defendants, 
or  either  of  them,  not  exempt  from  execution,  in 
....  County,  out  of  which  to  make  the  remainder 
of  said  judgment,  or  any  part  of  such  remainder,  and 
herewith  return  said  writ  partly  satisfied,  to  wit:  in 
the  sum  of  $.  .  .  .") 

And  I  further  certify  that  I  deducted  from  the 
said  sum  of  $.  .  .  .,  my  fees,  commission  and  expenses, 
amounting  to  the  sum  of  $.  .  .  .,  leaving  a  net  balance 
of  $....,  which  I  have  paid  to  plaintiff's  attorney, 
whose  receipt  therefore  is  hereto  attached. 

Dated,   ,   19.  . 

,  Sheriff. 

By  ,  Deputy  Sheriff. 

§838.    Return  on  foreclosure.      (California.) 
Sheriff's  Office, 


County  of  .  .    ^  ^^ 

I,    ,  Sheriff  of  the  County  of    ,  do 

hereby  certify:  That  by  virtue  and  in  pursuance  of 
the  annexed  order  of  sale  and  decree  of  foreclosure 
and  sale,  I  advertised  the  property  described  as  fol- 
lows, to  wit:  ....  (description),  to  be  sold  by  me  in 
front  of  the  Court  House  door  in  the  City  of  .  .  .  ., 
County  of  .  .  .  .,  on  the  ....  day  of  .  .  .  .,  A.  D.  19.  ., 
at  ....   o'clock  .  .  M.;  that  previous  to  said  sale  I 


§  838  SHERIFFS  AND  CONSTABLES.  514 

posted  written  notice,  particularly  describing  the 
property,  for  twenty  days,  in  three  public  places  of 
the  township  or  city  where  the  property  is  situated, 
and  also  where  the  property  w^as  to  be  sold;  and  also 
caused  due  and  legal  written  notice  thereof  to  be 
published  once  a  week  for  the  same  period,  preced- 
ing said  sale,  in  the  .  .  .  . ,  a  .  .  .  .  newspaper  published 
in  the  County  of  .  .  .  .,  and  that  on  .  .  .  .,  the  .... 
day  of  .  .  .  .,  19.  .,  the  day  on  which  said  premises 
were  so  advertised  to  be  sold  as  aforesaid,  I  attended 
at  the  time  and  place  fixed  for  said  sale,  and  ex- 
posed the  said  premises  for  sale  in  ....  parcel  .... 
at  public  auction,  according  to  law,  to  the  highest 
bidder  for  cash  ....  when  .  .  .  .,  being  the  highest 
bidder  therefor,  the  said  premises  were  struck  off 
by  me  to  the  said  .  .  .  . ,  for  the  sum  of  ....  dollars, 
in  United  States  gold  coin,  which  was  the  whole 
price  bid,  and  which  I  acknowledge  to  have  re- 
ceived; and  that  I  delivered  to  said  purchaser  a  cer- 
tificate of  said  sale,  and  filed  a  duplicate  thereof  in 
the  office  of  the  County  Recorder  of  the  said  .... 
County. 

And  I  further  certify  that  I  deducted  from  the 
said  sum  of  $.  .  .  .  my  fees,  commission  and  expenses, 
amounting  to  the  sum  of  $.  .  .  .,  leaving  a  net  balance 
of  $.  .  .  .,  which  net  balance  I  have  paid  to  plaintiff's 
attorney,  whose  receipt  therefor  is  hereto  attached. 

(Here  state  the  satisfaction  of  judgment  or  amount 
of  deficiency  as  the  case  may  be.     {See  sec.  837,  ante.) 

Dated,  ,  19.  . 

,  Sheriff. 

By  ,  Deputy  Sheriff. 


515  FORMS.  §§839,840 

§  839.    Return  on  replevin  —  Property  delivered 
to  plaintiff.      (California.) 

Sherifif's  Office,  j  ^^ 

County  of  ....   J      ■  *     -      1     . 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  and  return,  that  on  the  ....  day  of  ....  19.  ., 
I  executed  the  order  indorsed  hereon,  for  delivery  of 
the  personal  property  mentioned  in  the  within  affi- 
davit, by  taking  possession  of  the  same  (or  all  thereof 
to  be  found  in  my  county),  to  wit:  ....  (description 
of  property  taken),  and  at  the  same  time  I  delivered 
to  the  defendant,  Jonathan  Wild,  a  copy  of  the  with- 
in affidavit  and  order,  and  undertaking  duly  ap- 
proved by  me,  and  defendant  having  failed  to  except 
to  the  surety  therein,  and  also  having  omitted  to  re- 
quire a  return  of  said  property,  and  no  other  person 
than  the  defendant  having  made  claim  thereto,  I  did 
at  the  expiration  of  the  time  prescribed  by  the  statute 
for  seeking  such  delivery  and  making  such  claim, 
to  wit:  on  the  ....  day  of  .  .  .  .,  19.  .,  deliver  the 
property  so  taken  to  the  plaintiff,  as  by  said  order  I 
am  commanded. 

Dated,    ,   19.  • 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $.  .  .  . 

§  840.    Return  on  replevin — Property  re-delivered 
to  defendant.      (California.) 
Sheriff's  Office, 


County  of  ...  .   / 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  and  return,  that  on  the  ....  day  of  ...  .  19.  ., 


§841  SHERIFFS  AND  CONSTABLES.  516 

I  executed  the  order  indorsed  hereon,  for  delivery  of 
the  personal  property  mentioned  in  the  within  affi- 
davit, by  taking  possession  of  the  same  (or  all  thereof 
to  be  found  in  my  county),  to  wit:  ....  (description 
of  property  taken),  and  at  the  same  time  I  delivered 
to  the  defendant,  Jonathan  Wild,  a  copy  of  the 
within  affidavit  and  order  and  undertaking,  duly 
approved  by  me,  and  the  defendant  not  having  ex- 
cepted to  such  surety,  claimed  the  redelivery  of  said 
property  by  giving  me  an  undertaking  in  due  form, 
and  the  sureties  thereon  having  justified,  and  no  other 
person  having  made  claim  to  said  property  in  due 
form  of  law,  I  redelivered  the  said  property  to  the 
defendant. 

Dated,   ,   19.  . 

;/.  .  ,   Sheriff. 

"^  ■  By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $.  .  .  . 

§841.     Return    on    writ    of    restitution.       (Cali- 
fornia.) 

Sheriff's  Office, 
County  of  .... 

I,    ,   Sheriff  of  the  County  of    ,   do 

hereby  certify  that  under  and  by  virtue  of  the  within 
writ  of  restitution,  by  me  received  on  the  ....  day 

of ,  19.  .,  I  served  the  same  on  the  ....  day 

of  .  .  .  .,  19.  .,  by  placing  the  within  named  ....  in 
quiet  and  peaceable  possession  of  the  lands  and  prem- 
ises therein  described.  (I  further  certify  that  after 
due  search  and  diligent  inquiry  I  have  been  unable 
to  find  any  property  belonging  to  the  within  named 
defendant,  in  ....  County,  not  exempt  from  execu- 


SS. 


517  FORMS.  §842 

tion,  out  of  which  to  make  the  within  money  judg- 
ment, or  any  part  thereof,  and  I  herewith  return  said 
writ  without  further  service,  fully  satisfied  as  to  the 
plaintiff's  possession  of  the  lands  and  premises  there- 
in described,  and  wholly  unsatisfied  as  to  said  money 
judgment.) 

Dated,   ,   19.  . 

,  Sheriff. 

By  ,  Deputy  Sheriff. 

Sheriff's  Fees,  $.  .  .  . 

Note. — If  any  money  is  made  by  levy  and  sale,  or  other- 
wise, the  return  as  to  the  money  judgment  will  be  the  same 
as  in  return  on  writs  of  execution.  If  the  officer  put  the  plain- 
tiff's agent  in  possession,  the  return  should  show  that  the 
writ  was  served  "by  placing  the  within  named  plaintiff,  by  his 
agent,  John  Roe,  in  quiet  and  peaceable  possession,"  etc. 

§  842.  Return  on  writ  of  restitution — Not  served, 
strangers  in  possession.      (California.) 

Sheriff's  Office, 


County  of  ' 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  and  return  that  I  received  the  within  here- 
unto annexed  writ  of  restitution  on  the  ....  day  of 
.  .  .  .,  19.  .,  and  that  on  the  ....  day  of  .  .  .  .,  19.  .,  I 
proceeded  to  the  premises  therein  described  for  the 
purpose  of  serving  said  writ,  and  that  neither  H.  F. 
Larabee,  the  within  named  defendant,  nor  any  agent 
of  said  Larabee,  was  then  or  has  been  since  in  the 
possession  of  said  premises;  and  that  said  premises 
were  in  the  possession  of  and  occupied  by  L.  H. 
Brown,  who  then  and  there  claimed  possession  there- 
of as  heir  of  George  Brown,  deceased,  owner  in  fee 
simple  of  said  premises,  and  also  claimed  possession 


§§843,844       SHERIFFS  AND  CONSTABLES.  518 

of  said  premises  as  executor  of  the  last  will  of  George 
Brown,  deceased,  owner  in  fee  simple  of  said  prem- 
ises; and  said  L.  H.  Brown,  as  such  executor,  claimed 
possession  and  title  to  the  said  premises  by  title  su- 
perior to  and  entirely  independent  of  any  claim  or 
title  or  possession  of  plaintifif  or  defendant  named 
in  said  writ.  I  further  certify  that,  after  due  search 
and  diligent  inquiry,  I  have  been  unable  to  find  any 
property  belonging  to  the  within  named  defendant, 
in  ....  County,  not  exempt  from  execution,  out 
of  which  to  make  the  money  judgment  in  said  writ, 
or  any  part  thereof,  and  I  herewith  return  said  writ 
without  further  service,  wholly  unsatisfied. 

Dated,   ,   19.  . 

,   Sheriff. 

By   ,  Deputy  Sheriff. 

§  843.  Return  on  writ  of  assistance.  {Cali- 
fornia.) 

(The  same  form  of  return  may  be  used  as  in  writ 
of  restitution  (sees.  841,  842,  ante.)  There  is  no 
money  judgment  required  to  be  made  by  the  writ  of 
assistance,  and  no  return  required  except  as  to  put- 
ting plaintiff  in  possession.) 

§  844.    Return  on  writ  of  certiorari. 

Sheriff's  Ofiice,  )  ^^ 
County  of  ....  J 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  received  the  within  writ  on  the  .... 
day  of  .  .  .  .,  19.  .,  and  served  the  same  on  the  .... 
day  of  .  .  .  .,  19.  .,  by  delivering  to  and  leaving  with 


519 


FORMS.  §§  845,  846 


ss. 


Hezekiah  Lorgs,  personally,  in County,  a  copy 

of  the  within  writ. 

Dated,    ,   i9-  • 

,  Sheriff. 

By  ,  Deputy  Sheriff. 

Sheriff's  Fees,  $.... 

§845.    Search  warrant.      (California.) 

County  of   .  .  .  .  \ 
....   Township,  j 

The  People  of  the  State  of to  any  sheriff,  con- 
stable, marshal,  or  policeman  in  the  County  of .  .  .  . 
Proof,  by  affidavit,  having  been  this  day  made  be- 
fore me  by  (naming  every  person  whose  affidavit  has 
been  taken),  that  (stating  the  grounds  of  the  appli- 
cation), you  are  therefore  commanded,  in  the  day- 
time (or  at  any  time  of  the  day  or  night,  as  the  case 
may  be),  to  make  immediate  search  on  the  person  of 
C  D)   or  in  the  house  situated  .  .  .  .,  (describing  it, 
or  any  other  place  to  be  searched,  with  reasonable 
particularity,  as  the  case  may  be),  for  the  following 
property:  (describing  it  with  reasonable  particular- 
ity) ;  and  if  you  find  the  same,  or  any  part  thereof, 
to  bring  it  forthwith  before  me  at  (stating  the  place) . 
Given  under  my  hand,  and  dated  this  ....  day  of 
....,  A.  D.  19.. 
E  F,  Justice  of  the  Peace  (or  as  the  case  may  be). 

§  846.    Return  on  search  warrant.    (California.) 
County  of   .  .  . 


Township.  J 

I  hereby  certify  that  I  have  served  the  within  war- 
rant, and  have  the  property  described  therein  in  the 


§§  847,  848       SHERIFFS  AND  CONSTABLES.  520 

place  designated,  in  the  possession  of  .  .  .  .,  and  hav- 
ing cause  to  believe  that  said stole  said  property, 

I  have  arrested  him,  and  have  him  with  the  goods 
here  in  court. 

Dated,   ,   19.  . 

,  Constable. 

§  847.  Affidavit  to  inventory  with  search  war- 
rant.     {California.    See  Code  Civ.  Proc.,sec.  1537.) 

County  of   .....  |  ^^ 
....   Township,    j 

I, ,  the  officer  by  whom  the  warrant  was  exe- 
cuted, do  swear  that  the  above  inventory  contains  a 
true  and  detailed  account  of  all  the  property  taken 
by  me  on  the  warrant. 

Subscribed  and  sworn  to  before  me, 
this  ....  day  of  .  .  .  .,  19.  . 


§848.    Return  on  citation.      {California.) 

Sheriff's  Office,  "1  ^^ 
County  of  ....  J 

I,    ,  Sheriff  of  the  County  of    ,  do 

hereby  certify  that  I  served  the  within  citation  on 
the  within  named ,  by  delivering  to  .  .  .  .,  per- 
sonally, a  copy  thereof,  on  the  ...  .  day  of  .  .  .  .,  A.  D. 
19.  .,  at  said  county. 

Dated,   ,   19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $ 


521 


FORMS.  §§  849,  850 


§  849.    Return  on  service  of  injunction  on  indi- 
vidual.      ( California. ) 

Sheriff's  Office,  "1  ^^ 
County  of  ....  J      * 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  received  the  annexed  order  of  injunc- 
tion on  the day  of ,  19.  .,  and  personally 

served  the  same  on  the  ....  day  of  .  .  .  .,  19.  .,  upon 
Silas  Snooks,  defendant,  by  delivering  to  said  Silas 

Snooks,  personally,   in  the  County  of    ,  a 

copy  of  said  order  of  injunction  and  of  the  summons, 
and  a  copy  of  the  verified  complaint  in  said  action 
therein  named. 

Dated,   ,  19. . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $ 

§  850.    Return  on  injunction  against  county  and 
supervisors.       {California.) 

Sheriff's  Office,  |  ^^ 
County  of   ....  J 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  received  the  annexed  writ  of  injunction 
on  the  ....  day  of  .  .  .  .,  19.  .,  and  duly  served  the 

same  on  said day  of ,  19.  .,  by  personally 

delivering  to  and  leaving  with  each  of  the  following 
named  persons,  as  members  of  the  Board  of  Super- 
visors of  the  County  of  .  .  .  .,  in  the  said  County  of 
.  . .  .,  on  said  day,  a  copy  of  said  writ  of  injunction 
attached  to  a  copy  of  the  complaint  mentioned  in 
said  writ  of  injunction,  which  said  copy  of  the  com- 
plaint had  attached  to  it  the  verification  to  the  origi- 


§  851  SHERIFFS  AND  CONSTABLES.  ^22 

nal  complaint:  (insert  names  of  persons  served). 
And  I  further  certify  that,  at  the  time  of  said  ser- 
vice, said  persons  were  members  of  the  Board  of 

Supervisors  of  the  County  of    ,  the  defendant 

named  in  said  writ  of  injunction  and  complaint,  and 
that  said  persons  were  so  served  as  members  of  said 
board. 

And  I  further  certify  that  I  served  the  said  writ 
of   injunction   on   the   defendant,   "The   County  of 

,"  on  the day  of ,  19.  .,  by  personally 

delivering  to  and  leaving  with  .  .  .  .,  president  of  the 
Board  of  Supervisors  of  said  County  of  .  .  .  .,  a  copy 
of  said  writ  of  injunction  attached  to  a  copy  of  the 
complaint  mentioned  in  said  writ  of  injunction, 
which  said  copy  of  the  complaint  had  attached  to  it 
a  copy  of  the  verification  to  the  original  complaint. 

Dated,   ,   19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

Sheriff's  Fees,  $.... 

§851.    Return   on   habeas   corpus  —  Prisoner   in 
custody.       ( California. ) 

Sheriff's  Office,  \  ^^ 
County  of  ....  j  ^'' 

I, ,  Sheriff  of  the  County  of  .  .  .  . ,  do  hereby 

return  to  the  Honorable  Judge  of  the  Superior  Court 
of  ....  County,  that  before  the  coming  to  me  of  the 
within  writ,  the  said  Petroleum  V.  Nasby  was  com- 
mitted to  my  custody,  and  that  he  now  is  detained  by 
virtue  of  a  commitment,  a  copy  of  which  is  hereto 
annexed,  the  original  of  which  T  also  herewith  pro- 


523 


FORMS.  §§  852,  853 


duce;  nevertheless  I  have  the  body  of  the  said  Pe- 
troleum V.  Nasby  before  you  at  the  time  and  place 
within  mentioned,  as  I  am  within  commanded. 

Dated,    ,   19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

§852.    Return  on  habeas  corpus  —  Prisoner  re- 
leased on  bail.       (California.) 
Sheriff's  Office, 


County  of  ....  J 

I, ,  Sheriff  of  the  County  of ,  in  obe- 
dience to  the  order  contained  in  the  within  writ,  do 
hereby  return  to  the  Honorable  ....  Court  of  the 
County  of  .  .  .  . ,  State  of  .  .  .  . ,  that  before  the  coming 
to  me  of  the  said  writ,  the  said  ....  was  committed  to 
my  custody  by  virtue  of  a  commitment,  a  copy  of 
which  is  hereto  annexed,  the  original  of  which  I 
also  produce;  and  that  said  ....  has  been  allowed  to 
go  upon  bail  approved  by  a  judge  of  the  ....  Court 
of  the  County  of  ....  in  said  State,  the  bail  bond 
whereof  is  filed  with  the  clerk  of  said  Court. 

Dated,    ,   19.  . 

,   Sheriff. 

By   ,  Deputy  Sheriff. 

§  853.    Return  on  habeas  corpus — Prisoner  held 
on  oral  charge.      (California.) 

Sheriff's  Office,  |  ^^ 
County  of  ....  J 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  and  make  return  to  the  writ  of  habeas  corpus 
in  the  matter  of  the  application  of  ....  in  the  .... 
Court  of  the  County  of ,  as  follows,  to  wit:  That 


§  854  SHERIFFS  AND  CONSTABLES.  524 

on  the day  of ,  19.  .,  I  received  into  my 

custody  the  said ,  and  he  was  so  placed  in  my 

charge  and  custody  by  one  .  .  .  .,  Constable  of  .... 
Township,  of  the  County  of ,  and  on  the  said  re- 
ceipt of  said  ....  and  the  placing  of  said  ....  into 
my  custody  by  said  .  .  .  .,  he,  the  said  .  .  .  .,  placed  a 
charge  and  charged  said  ....  with  the  crime  of  .  .  .  ., 
and  under  and  by  virtue  of  said  charge  so  preferred 
by  said  .  .  .  .,  and  by  the  law  in  such  cases  made  and 
provided,  and  by  no  other  warrant  or  process,  I  hold 
said  ....  in  my  custody. 

Dated,   ,   i9-  • 

,  Sherifif. 

By   ,  Deputy  Sheriff. 

§  854.    Return  on  habeas  corpus — Prisoner  held 
on  judgment  pending  appeal.       (California.) 

Sheriff's  Office,  Kg 
County  of  ....  J 

I, ,  Sheriflf  of  the  County  of ,  do  hereby 

return  to  the  Honorable   ....,  Judge  of  the    .... 

Court  of  the County,  that  before  the  coming  to 

me  of  the  within  writ,  the  said  ....  was  committed  to 
my  custody,  and  is  detained,  by  virtue  of  an  order 
made  by  the  Honorable  .  .  .,  Judge  of  the  ...  Court 
of  .  .  .  County,  a  certified  copy  of  which  is  hereto  an- 
nexed; and  that  said  ....  is  held  in  my  custody  under 
and  by  virtue  of  a  judgment  in  the  case  of  the  People 
of  the  State  of  ....  against  .  .  .  . ,  in  the  ....  Court 
of  the  County  of  ....,  a  certified  copy  of  which 
judgment  I  herewith  produce;  and  that  said  ....  is 
also  detained  by  me  by  virtue  of  a  certificate  of  prob- 
able cause,  made  by  the  Honorable  .  .  .  .,  Judge  of 
the  ....  Court  of  the  State  of  .  .  .  .,  and  dated  .  .  .  ., 


525  FORMS.  §  855 

19.  .,  for  the  appeal  prosecuted  by  said  ....  to  the 
Supreme  Court  of  the  State  of  .  .  .  . ,  a  copy  of  which 
certificate  is  hereto  annexed: 

Nevertheless,  I  have  the  body  of  the  said  ....  be- 
fore you  at  the  time  and  place  within  mentioned,  as 
I  am  within  commanded. 

Dated,    ,   19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

§  855.  Return  on  habeas  corpus — Prisoner  held 
by  United  States  court. 

Sheriff's  Office,  \  ^^ 
County  of  ....  J 

To  the  Honorable  ....  Court  of  the  County  of  .  .  .  ., 
State  of  .  . .  .  : 
In  return  to  the  writ  of  habeas  corpus  issued  to  me, 
commanding  me  to  produce  before  your  Honorable 
Court  the  body  of  .  .  .  .,  now  in  my  custody,  I  hereby 
produce  and  return  to  you  a  certified  copy  of  an  order 
of  the  ....  Court  of  the  United  States  for  the  .... 
District  of  .  .  .  . ,  made  on  the  ....  day  of  .  .  .  . ,  19 .  . , 
by  which  order  the  said  ....  was  ordered  to  be  im- 
prisoned in  the  County  Jail  of  ....  County,  .  .  .  ., 
and  under  which  he  was  committed  to  my  custody  on 
the  ...  .  day  of  ....  19.  .,  by  the  United  States  Mar- 
shal for  the  said  ....  District  of  .  .  .  .,  and  by  virtue 
of  which  order  I  now  hold  said I  further  cer- 
tify that  I  also  hold  said  ....  in  my  custody  in  obe- 
dience to  two  certain  further  orders  of  said  .... 
Court,  certified  copies  of  which  I  also  herewith  pro- 
duce, marked  respectively  "Order  to  Show  Cause 
and  Restraining  Order,"  and  "Certified  Copy  of 
Order." 


§§  856,  857       SHERIFFS  AND  CONSTABLES.  526 

I  return  said  certified  copies  of  said  orders  as  a 
sufficient  return  to  said  writ  and  all  that  I  am  au- 
thorized to  return  by  law.  {See  Abelman  v.  Booth, 
21  How.  {U.  S.)  506,  16  L.  EtJ.  169,  and  Tarble's 
Case,  13  Wall.  (U.  S.)  397,  20  L.  Ed.  597.)  So  an- 
swers: 

Dated,   ,   i9-  • 

,   Sheriff. 

By   ,  Deputy  Sheriff 

§  856.    Return  on  warrant  of  arrest. 

Sheriff's  Ofiice,  \  ^^ 
County  of  ....  J      ■ 

I  hereby  certify  that  I  received  the  within  warrant 
on  the  ....  day  of  .  .  .  .,  19.  .,  and  served  the  same  by 
arresting  the  within  named  defendant  on  the  ....  day 
of  .  .  .  .,  19.  .,  and  bringing  him  into  court  this  .... 

day  of  .  .  .  .,  19. . 

,  Sheriff. 

By   ,  Deputy  Sheritf. 

§  857.  Return  on  warrant — Defendant  released 
on  bail. 

Sheriff's  Office, 


County  of  ....  J 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  have  served  the  within  warrant  by  ar- 
resting the  within  named  defendant,  .  .  .  . ,  on  the  .... 
day  of  .  .  .  .,  19.  .  ;  and  said  defendant  having  given 
the  required  bail,  in  the  sum  of  ....  dollars,  with 
....  and  ....  as  sureties,  and  said  bail  having  been 
approved  by  the  Honorable  .  .  .  .,  Judge  of  the  .... 


527  FORMS.  §§  858,  859 

Court  of  the  County  of   I  have  released  said 

defendant  from  custody. 

Dated,   ,   19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

§  858.    Certificate   of   surrender    of    prisoner   by 
bondsmen. 

Sheriff's  Office,  1    ^ 
County  of  ....  J 

,  one  of  the  sureties  upon  the  bail  bond  of 

.  .  .  .,  charged  ....  (state  charge  against  prisoner), 
having  delivered  to  me  a  certified  copy  of  the  bail 
bond  of  .  .  .  .,  together  with  his  statement  in  writing, 
surrendering  said  ....,  and  I,  having  thereupon 
taken  in  custody  the  said  .  .  .  . ,  whom  I  now  hold,  I 
do  now  certify  and  by  this  certificate  acknowledge 
that  said  ....  has  surrendered  the  said  .  .  .  . ,  and  that 
said  ....  is  now  in  my  custody. 

Dated,    ,   19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

§  859.    Return  on  order  of  arrest — Prisoner  dis- 
charged on  habeas  corpus  and  bail  given. 

Sheriff's  Office,  1  ^^ 
County  of  ....  J 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  and  return  that  I  received  the  within  annexed 
certified  copy  of  Order  and  Judgment  on  the  .... 
day  of  .  .  .  .,  19.  .,  and  served  the  same  by  arresting 
the  therein  named  ....  on  said  ....  day  of  .  .  .  ., 
19.  .,  and  taking  him  into  my  custody;  and  that  I 


§§86o,  86l       SHERIFFS  AND  CONSTABLES.  528 

held  and  detained  him  in  my  custody  under  said  or- 
der and  judgment,  until  he  was,  in  due  form  of  law, 
removed  from  my  custody  by  writ  of  habeas  corpus, 

on  said day  of ,19.  .,  granted  by  Honorable 

,  Associate  Justice  of  the  Supreme  Court  of  the 

State  of   ,  and  was  then  and  there  discharged 

from  such  arrest,  by  an  order  contained  in  said  writ 
admitting  said  ....  to  bail  in  the  sum  of  ...  .  dollars. 

Dated,    ,   19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

§  860.    Return  on  order  of  arrest  —  Arrest  and 
bail  in  justice's  court.      (California.) 

County  of   •  •  •  •>  1  gg 
....   Township,  j 

I  hereby  certify  that  I  have  served  the  above  order, 
by  arresting  and  bringing  into  court  the  said  .  .  .  ., 

this   day  of   ,  A.  D.   19.  .,  at o'clock 

.  .  M.,  and  that  I  have  notified  the  plaintiff  thereof. 

,  Constable. 

By   ,  Deputy. 

§  861.    Return  on  venire  for  jurors. 

Sheriff's  Office,  |  ^^ 
County  of  ....  J 

I, ,  Sheriff  of  the  County  of ,  hereby 

certify  that  I  received  the  within  and  hereunto  an- 
nexed venire  for  ....  jurors,  on  the  ....  day  of  .  .  .  ., 
A.  D.  19.  .,  and  by  virtue  of  the  same  have  personally 
summoned  the  hereinafter  named  persons  to  be  and 
appear  at  the  time  and  place  therein  named,  to  act 
as   ....  jurors.     I  also  certify  that  they  were  sum- 


529 


FORMS.  §  862 


moned  at  the  time  and  in  the  manner  set  opposite 
their  respective  names,  viz.:  by  leaving  with  them 
personally,  when  they  could  be  found,  the  notice  re- 
quired by  statute,  and  when  they  could  not  be  found, 
by  leaving  such  notice  at  their  respective  places  of 
residence  with  some  person  of  suitable  age. 

Names.  |  Manner  of  Service,  j  Time  of  Service.  |  No.  Miles. 

Dated,   ,   19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

§862.    Return  on  death  warrant.      (For  states  in 
which  death  warrants  are  executed  by  sheriffs.) 

Sheriff's  Office,  1  ^^ 
County  of  ....  J 

I,    ,   Sheriff  of  the  County  of    ,  do 

hereby  certify  and  return  that  I  received  the  within 
warrant  on  the  ....  day  of  .  .  .  .,  A.  D.  19.  .,  and  that, 
in  compliance  with  three  certain  orders  of  reprieve, 

granted  by  the  Honorable ,  Governor  of  the 

State  of   ,  and  issued  under  the  great  seal 

of  the  State  of ,  and  delivered  to  me,  the 

execution  of  the  within  named was  postponed 

by  me  until  the  ....  day  of  .  .  .  . ,  A.  D.  19 .  . ,  on  which 
said  last-named  day,  between  the  hours  of  9  o'clock 
in  the  forenoon  and  4  o'clock  in  the  afternoon  of  said 
day,  to  wit:  between  the  hours  of  ....  and  .... 
o'clock  of  said  day,  in  pursuance  of  said  warrant  and 

reprieves,  said was  executed  by  me,  as  such 

sheriff,  by  hanging  by  the  neck  until  he  was  dead,  in 

the  jail  yard  of  the  jail  of  said  County  of ;  and 

that  said  execution  was  conducted  in  conformity  to 
the  provisions  of  law  of  this  State  concerning  capital 


863,  864       SHERIFFS  AND  CONSTABLES. 


530 


punishment,  and  of  the  sentence  referred  to  in  said 
warrant. 

Dated  at ,  this day  of ,  A.  D.  19.  . 

Sherifif. 


§  863.    Return  on  notice  of  land  office  contest. 

State  of  California,    \ 
County  of J 

^  being  duly  sworn,  says  that  he  is  acquainted 

with   .  .  .  . ,  named  within,  in  the  contest  of   ....  v. 
.  .  .  .  ;  that  he  served  the  notice  of  contest  herein  on 

said at ,  on day,  the day  of , 

A.  D.  19.  .,  by  handing  to  and  leaving  with  said  .... 
a  true  copy  of  the  said  notice  of  contest  herein. 
Subscribed  and  sworn  to  before 

me  this  ....  day  of  .  .  .  .,  19.  . 


§  864.  Order  for  attachment  of  personal  prop- 
erty.     {California.) 

In  the   ....   Court  of  the  County  of ,  State 

of  ...  . 


vs. 


To ,  Sherifif  of County : 

You  are  hereby  instructed  to  attach,  by  virtue  of 
the  accompanying  writ,  in  the  above  entitled  suit,  the 
following  described  property,  and  place  a  keeper  in 
charge  at  plaintiff's  expense,  viz. :  .  .  .  .  (description) . 

Dated,   ,   19.  . 


Attorney  for  Plaintiff. 


531  FORMS.  §§865,866 

§865.  Sheriff's  notice  of  garnishment.  (Cali- 
fornia.) 

Sheriff's  Office,  1    ^ 
County  of  ....  J      * 

To  Mr : 

You  will  please  take  notice  that  all  moneys,  goods, 
credits,  effects,  debts  due  or  owing,  or  any  personal 
property  in  your  possession  or  under  your  control,  be- 
longing to  the  within  named  defendant.  . ,  or  either  of 
them,  are  attached  by  virtue  of  a  writ  of  which  this 
is  a  copy,  and  you  are  notified  not  to  pay  over  or 
transfer  the  same  to  any  one  but  the  Sheriff  of  .... 
County,  or  some  one  legally  authorized  to  receive  the 
same,  but  conduct  yourself  in  accordance  with  the 
statutes  in  such  case  made  and  provided.  I  also  re- 
quire of  you  a  statement  in  writing  of  the  amount  of 
the  same. 

Dated,   ,   19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

§  866.    Answer  to  garnishment.      [California.) 

In  the  ....  Court  of  the  County  of  .  .  .  .,  State 
of  


vs. 


To  the  notice  of  garnishment  and  demand  for  a 
statement  served  on  me  this  .  .  .  day  .  .  .,  A.  D.  19.  ., 
by  the  Sheriff  of  ....  County,  under  and  by  virtue 
of  an  ....  issued  in  the  above  entitled  cause,  my 
answer  is,  that  I  am  ....  indebted  to  .  .  .  .,  said  de- 


§  867  SHERIFFS  AND  CONSTABLES.  532 

fendant.  .,  in  the  sum  of  ...  .  dollars,  and  that  I  have 
in  my  possession  and  under  my  control  ....  personal 
property  belonging  to  said  defendant,  to  wit:  .... 
(property). 

(Signed)    

Dated,   ,   19.  . 


§  867.    Sheriff's  inventory  and  keeper's  receipt. 

(California.) 


vs. 


Sheriff's  Inventory. 


By  virtue  of  a  writ  of  ....  against  the  defendant 
in  the  above  entitled  cause,  for  $.  .  .  .,  with  interest 
and  costs,  duly  attested  the  ....  day  of  .  .  .  .,  A.  D. 
19 .  . ,  I  have  levied  upon  the  following  property  upon 
the  premises  of  .  .  .  .,  and  in  ....  possession,  .  .  .  .,  to 
wit: (description). 

Dated, ,  19.  . 

,  Sheriff. 

By  ,  Deputy  Sheriff. 

The  following  is  the  keeper's  indorsement  on  above  form : — 

Keeper's  Receipt. 

I  hereby  acknowledge  that  I  have  received  the 
within  described  property  so  levied  upon  by  the 
Sherifif  of  ...  .  County,  from  said  Sheriff,  and  hereby 
promise  and  undertake  to  return  the  same,  and  every 
part  thereof,  to  the  said  Sheriff  on  demand. 

Dated,    ,   19.  . 

,  Sheriff's  Keeper. 


533  FORMS.  §§  868, 869 

§868.    Notice  of  attachment  of  stocks.      (Cali- 
fornia.) 

Sheriff's  Office,  1 
County  of  ....  J 

To  The  Happy  Clam  Mining  Company,  and  David 
Digger,  Secretary  of  said  Company: 
You  will  please  take  notice  that  all  stocks  or  shares, 
or  interest  in  stocks  or  shares,  of  The  Happy  Clam 
Mining  Company,  in  your  possession  or  under  your 
control,  belonging  to  the  within  named  defendant, 
are  attached  by  virtue  of  the  writ,  of  which  this  is 
a  copy,  and  you  are  notified  not  to  transfer  or  de- 
liver over  the  same  to  any  one  but  the  Sheriff  or 
....  County.  I  also  require  of  you  a  statement  in 
writing  of  the  amount  of  the  same. 

Dated,   ,   i9-  • 

,  Sheriff. 

By   ,  Deputy  Sheriff. 


of 


869.    Order  for  attachment  of  real  estate. 

In  the   ....   Court  of  the  County  of   .  .  .  .,  State 


vs. 


To  .  .  .  .,  Sheriff  of  ....  County: 

You  are  hereby  instructed  to  attach,  by  virtue  of 
the  accompanying  writ,  in  the  above  entitled  suit,  the 
following  described  property,  standing  on  the  records 
of  ....  County  in  the  name  of  .  .  .  .,  to  wit: 
(description). 

Dated,   ,   19.  . 


Attorney  for  Plaintiff. 


§§  870-872       SHERIFFS  AND  CONSTABLES.  534 

§  870.    Notice    of    attachment    of    real    property. 

(California.) 

[TO  ATTACH  TO  COPY  OF  WRIT.] 
State  of 


County  of  .  ^      ' 

Notice  is  hereby  given  that,  under  and  by  virtue 
of  a  writ  of  attachment,  issued  out  of  the  ....  Court 
of  ....  County,  State  of  .  .  .  .,  of  which  the  annexed 
is  a  true  copy,  I  have  this  day  attached  all  the  right, 
title,  claim  and  interest  of  ....,  defendant..,  or 
either  of  them,  of,  in  and  to  the  following  described 
real  estate,  standing  on  the  records  of  ....  County 
in  the  name  of  .  .  .  .,  and  particularly  described  as 
follows:  ....   (description  of  property). 

Dated,   ,   19.  . 

,  Sheriff. 

By ,  Deputy  Sheriff. 

§  871.    Order  for  release  of  attachment. 


vs. 


To  .  .  .  .,  Sheriff  of  ....  County: 

You  are  hereby  directed  and  ordered  to  release  all 
the  property  attached  by  you  in  the  above  entitled 
action,  and  return  the  writ  of  attachment  to  the  court 
from  which  it  was  issued. 

Dated, ,  19.  . 


) 

Plaintiff's  Attornev. 


§  872.     Undertaking     to     prevent     attachment 

[California.) 


535  FORMS.  §  872 

In  the   ....   Court  of  the  County  of   .  .  .  .,  State 
of  .... 


vs. 


Whereas,  the  above  named  plaintiff  has  com- 
menced an  action  in  the  aforesaid  court,  against  the 
above  named  defendant,  for  the  recovery  of  .... 
dollars,  .  .  .  .  ;  and  whereas,  an  attachment  has  been 
issued,  directed  to  ....,  Sheriff  of  the  County  of 
.  .  .  .,  and  placed  in  his  hands  for  execution,  whereby 
he  is  commanded  to  attach  and  safely  keep  all  the 
property  of  the  said  defendant  within  his  county  not 
exempt  from  execution,  or  so  much  thereof  as  might 
be  sufficient  to  satisfy  the  plaintiff's  demand  therein 
stated,  in  conformity  to  the  complaint,  in  the  sum  of 
....  dollars,  ....,  unless  the  defendant  give  him 
security  by  the  undertaking  of  two  sufficient  sureties, 
in  an  amount  sufficient  to  satisfy  said  demand,  beside 
costs,  in  which  case  to  take  such  undertaking; 

And  whereas,  the  said  defendant  is  desirous  of  giv- 
ing the  undertaking  mentioned  in  the  said  writ: 

Now,  therefore,  we,  the  undersigned,  residents  of 
the  ....,  in  consideration  of  the  premises  and  to 
prevent  the  levy  of  said  attachment,  do  hereby  jointly 
and  severally  undertake,  in  the  sum  of  ....  dollars, 
and  promise  to  the  effect  that  if  the  plaintiff  shall 
recover  judgment  in  said  action,  we  will  pay  to  the 
plaintiff  upon  demand  the  amount  of  said  judgment, 
together  with  the  costs,  not  exceeding  in  all  the  said 
sum  of  ....  dollars. 

Dated  at  .  .  .  .,  the  ....  day  of  .  .  .  .,  19.  . 

[Seal.] 

[Seal.] 


§  873                 SHERIFFS  AND  CONSTABLES.  536 

State  of 


County  of  ' 

....  and  ....,  whose  names  are  subscribed  as 
sureties  to  the  above  undertaking,  being  severally 
duly  sworn,  each  for  himself  deposes  and. says:  That 
he  is  a  resident  and  ....  holder  of  the  .  .  .  .,  County 
of  ....  and  is  worth  the  sum  in  the  said  undertaking- 
specified  as  the  penalty  thereof,  over  and  above  all 
his  just  debts  and  liabilities,  exclusive  of  property 
exempt  from  execution. 

Subscribed  and  sworn  to  before  me,  1      

this  .  .  .  .  day  of  .  .  .  .,  A.  D.  19.  .  J      

§  873.    Undertaking    on    release    of    attachment. 

{California.) 

In  the   ....   Court  of  the  County  of   .  .  .  .,  State 
of  ...  . 

1 

vs. 


Whereas,  the  above  named  plaintiff.  .  commenced 
an  action  in  the  Superior  Court  of  the  ....  County 
of  .  .  .  .,  of  the  State  of  .  .  .  .,  against  the  above  named 
defendant..,  claiming  that  there  was  due  to  said 
plaintiff.  .  from  said  defendant.  .  the  sum  of  .... 
dollars,  or  thereabouts,  and  thereupon  an  attachment 
issued  against  the  property  of  said  defendant.  .  as 
security  for  the  satisfaction  of  any  judgment  that 
might  be  recovered  therein,  and  certain  property  and 
effects  of  the  said  defendant.  .  have  been  attached 
and  seized  by  the  sheriff  of  said  county,  under  and 
by  virtue  of  said  writ; 

And  whereas,  the  said  defendant desirous 

of  having  said  property  released  from  attachment; 


^27  FORMS.  §  874 

Now,  therefore,  we,  the  undersigned,  residents  and 
....  holders  in  the  County  of  .  .  .  .,  in  consideration 
of  the  premises,  and  also  in  consideration  of  the 
release  from  said  attachment  of  the  property  so  at- 
tached, as  above  mentioned,  do  hereby  jointly  and 
severally  undertake,  in  the  sum  of  ....  dollars,  and 
promise  that  in  case  the  plaintifi.  .  recover  judgment 
in  the  action,  defendant.  .  will,  on  demand,  pay  to 
plaintifif .  .  the  amount  of  whatever  judgment  may  be 
recovered  in  said  action,  together  with  the  percent- 
age, interest  and  costs,  the  same  to  be  paid  in  United 
States  gold  coin,  if  so  required  by  the  terms  of  the 
judgment. 

Dated  at  .  .  .  .,  the  ....  day  of  .  . .  .,  19. . 


(Insert  affidavit  of  qualification  of  sureties  as  in  preceding 
blank.) 


.    §  874.    Indemnity  bond  in  attachment. 

Know  all  Men  by  these  Presents: 

That  we,  .  .  .  . ,  of  the  County  of  .  .  .  . ,  as  principal, 
and  .  .  .  .,  of  the  said  county,  and  .  .  .  .,  of  the  said 
county,  as  sureties,  are  held  and  firmly  bound  unto 
.  .  .  .,  Sheriff  of  the  County  of  .  .  .  .,  in  the  sum  of 
....  dollars,  gold  coin  of  the  United  States  of  Amer- 
ica, to  be  paid  to  the  said  sheriff,  or  his  certain  attor- 
ney, executors,  administrators  or  assigns,  for  which 
payment  well  and  truly  to  be  made,  we  bind  our- 
selves, our  heirs,  executors  and  administrators,  jointly 
and  severally,  firmly  by  these  presents.  Sealed  with 
our  seals. 

Dated,  the  ...  .  day  of  .  .  .  .,  A.  D.  19.  . 


§  874  -  SHERIFFS  AND  CONSTABLES.  538 

Whereas,  under  and  by  virtue  of  a  writ  of  attach- 
ment issued  out  of  the  Court  of  the  ....  County  of 
.  .  .  . ,  of  the  State  of  .  .  .  . ,  in  the  action  of  .  .  .  . ,  plain- 
tiff, against  .  .  .  .,  defendant,  directed  and  delivered 
to  said  .  .  .  .,  Sheriff  of  the  County  of  .  .  .  .,  the  said 
sheriff  was  commanded  to  attach  and  safely  keep 
all  the  property  of  such  defendant  .  .  .  .,  within  his 
said  county,  not  exempt  from  execution,  or  so  much 
thereof  as  may  be  sufficient  to  satisfy  the  plaintiff's 
demand,  amounting  to  ....  dollars,  as  therein  al- 
leged, and  the  said  sheriff  did  thereupon  attach  the 
following  described  goods  and  chattels:  ....  (de- 
scription of  goods). 

And  whereas,  upon  the  taking  of  the  said  goods 
and  chattels  by  virtue  of  the  said  writ,  ....  claimed 
the  said  goods  and  chattels  as  h.  .  property. 

And  whereas,  the  said  plaintiff  hereby  expressly 
waiving  a  trial  by  a  sheriff's  jury  of  the  right  of  prop- 
erty, ....  require  of  said  sheriff  that  he  shall  retain 
said  property  under  such  attachment  and  in  his  cus- 
tody. 

Now,  therefore,  the  condition  of  this  obligation  is 
such  that  if  the  said  .  .  .  .,  as  principal,  and  ....  and 
.  .  .  .,  as  sureties,  their  heirs,  executors  and  adminis- 
trators, shall  well  and  truly  indemnify  and  save  harm- 
less him,  the  said  sheriff,  his  heirs,  executors,  admin- 
istrators and  assigns,  of  and  from  all  and  any  dam- 
ages, expenses,  costs  and  charges,  including  all  coun- 
sel fees  for  which  he,  the  said  sheriff,  his  heirs,  ex- 
ecutors, administrators  or  assigns,  may  incur  in  con- 
sequence of  the  legal  enforcement  of  the  payment  of 
the  penalty  of  this  bond;  and  against  all  loss  and  lia- 
bility which  he,  the  said  sheriff,  his  heirs,  executors, 
administrators  or  assigns,  shall  sustain  or  in  any  wise 


539 


FORMS.  §  874 


be  put  to,  for  or  by  reason  of  the  attachment,  seizing, 
levying,  taking  or  retention  by  him,  the  said  sherifif, 
in  his  custody,  under  said  attachment  of  the  property 
claimed  as  aforesaid. 

And  that  it  may  be  lawful  for  the  said  sherifif,  his 
heirs,  executors,  administrators  or  assigns,  to  bring 
suit  against  the  principal  and  sureties  hereto,  or  either 
of  them,  or  their  or  either  of  their  executors,  admins- 
trators  or  assigns,  immediately  upon  the  rendition 
of  any  judgment  against  the  plaintifif  in  said  cause  or 
against  the  said  sherifif,  his  heirs,  executors,  adminis- 
trators or  assigns.  And  that  said  sherifif  shall  not  be 
required  first  to  pay  the  said  judgment  in  order  to 
entitle  him  or  his  legal  representatives  to  maintain 
such  suit  and  recover  judgment  thereon — then  the 
above  obligation  to  be  void,  otherwise  to  remain  in 
full  force  and  virtue. 

In  case  suit  or  suits  at  law  or  in  equity,  or  any  pro- 
ceeding to  be  brought  against  the  said  .  .  .  .,  sherifif, 
or  against  him  individually,  or  against  him  in  any 
capacity,  jointly  with  other  person  or  persons,  or 
alone,  for  or  on  account  of  the  property  so  levied 
upon,  or  for  the  conversion  of  the  same,  the  said  .... 
shall  and  may  select  his  own  counsel  to  act  in  any 
such  matter  with  the  attorney  or  attorneys  of  the 
principal  in  this  bond  named,  and  the  reasonable  fees 
of  such  counsel  shall  be  a  charge  against  said  prin- 
cipal and  be  secured  by  this  bond.  So  likewise  in 
case  of  suit  or  any  event  requiring  the  advice  of  coun- 
sel in  and  about  the  custody  or  detention  of  said  prop- 
erty, the  said  ....  shall  be  at  liberty  to  consult  coun- 
sel of  his  own  choice,  and  the  reasonable  fee  of  such 
counsel  shall  be  secured  by  this  bond.  In  addition, 
and  as  cumulative  to  remedy  by  suit  against  the  sure- 


§  875  SHERIFFS  AND  CONSTABLES.  54O 

ties  hereto,  it  is  and  shall  be  the  right  and  privilege 
of  the  said  .  .  .  .,  immediately  upon  the  rendition  of 
any  judgment  against  the  plaintiff  in  this  cause  or 
against  the  said  .  .  .  .,  to  apply  in  the  court  wherein 
such  judgment  was  rendered,  and  upon  filing  this 
bond,  to  have  judgment  thereon  rendered  in  his  favor 
against  the  principal  and  sureties  hereon  for  the  full 
amount  of  any  such  judgment,  including  all  costs, 
damages,  expenses  and  counsel  fees  as  the  said  .... 
may  have  incurred  in  the  said  action,  as  well  as 
counsel  fees  for  advice,  and  expense  of  keeping  or 
storing  property  kept  hereinunder.  And  the  princi- 
pal and  sureties  hereto  expressly  waive  any  notice  of 
any  such  application,  and  consent  to  the  entry  of  such 
judgment,  consenting  and  stipulating  also  that  the 
estimate  of  said  ....  as  to  the  amount  of  expenses, 
counsel  fees,  storage  and  the  like,  shall  be  final,  bind- 
ing and  conclusive.  The  remedies  herein  provided 
shall  not  exclude  any  other  legal  relief,  but  are  cumu- 
lative to  the  other  rights,  legal  and  equitable,  of  said 

In  case  of  any  recovery  against  said    .... 

growing  out  of  the  seizure  or  detention  of  the  prop- 
erty herein  mentioned,  then  in  any  proceeding  by  said 
.  .  .  .,  upon  this  bond,  any  defense  based  upon  illegal- 
ity of  the  consideration  hereof,  or  the  unlawfulness 
of  the  act  or  acts  of  said  .  .  .  .,  as  sheriff  or  otherwise, 
is  hereby  expressly  waived. 

Sealed  and  delivered  in  presence  of 


§  875.     Order    for    levy    and    sale    of    personal 
property. 


541  FORMS.  §876 

In  the   ....   Court  of  the  County  of   .  .  .  .,  State 
of  .... 


vs. 


To ,  Sheriff  of County: 

You  are  hereby  instructed  to  levy  upon  and  sell, 
by  virtue  of  the  accompanying  writ,  in  the  above  en- 
titled suit,  the  foUow^ing  described  personal  property, 
belonging  to  the  defendant  herein:  ....  (descrip- 
tion). 

Dated,   ,  19.  . 


Attorney  for  Plaintiff. 

§  876.    Indemnity  bond  under  execution  —  Per- 
sonal property  claimed  by  third  party. 

Know  all  Men  by  these  Presents: 
That  we,  ....  of  the  County  of  .  .  .  .,  as  principal, 
and  .  .  .  .,  of  the  said  county,  and  .  .  .  .,  of  the  said 
county,  .  .  .  .,  as  sureties,  are  held  and  firmly  bound 
unto  .  .  .  .,  Sheriff  of  the  County  of  .  .  .  .,  in  the  sum 
of  ....  dollars,  gold  coin  of  the  United  States  of 
America,  to  be  paid  to  the  said  sherifif,  or  his  certain 
attorney,  executors,  administrators  or  assigns,  for 
which  payment  well  and  truly  to  be  made  we  bind 
ourselves,  our  heirs,  executors  and  administrators, 
jointly  and  severally,  firmly  by  these  presents.  Sealed 
with  our  seals. 

Dated, ,  the  ...  .  day  of  .  .  .  . ,  A.  D.  19 .  . 

Whereas,  under  and  by  virtue  of  a  writ  of  execu- 
tion, issued  out  of  the  ....  Court  of  the  ....  County 
of  .  .  .  .,  of  the  State  of  .  .  .  .,  in  the  action  of  .  .  .  ., 


§  876  SHERIFFS  AND  CONSTABLES.  542 

plaintiff,  against ,  defendant,  directed  and  de- 
livered to  said ,  Sheriff  of  the  County  of , 

the  said  sheriff  was  commanded  to  satisfy  the  judg- 
ment, with  interest,  out  of  the  personal  property  of 
such  defendant  within  his  county  not  exempt  from 
execution,  and  if  sufficient  personal  property  could 
not  be  found,  then  out  of  the  real  property  belonging 
to  him  on  the  day  when  the  said  judgment  was  dock- 
eted, ....  or  at  any  time  subsequently,  the  said  sheriff 
did  thereupon  levy  upon  and  take  into  his  possession 
the  following  described  goods  and  chattels,  to  wit: 
....    (description  of  goods). 

And  whereas,  upon  the  taking  of  the  said  goods 
and  chattels  by  virtue  of  the  said  writ,  ....  claimed 
the  said  goods  and  chattels  as  h.  .  property; 

And  whereas,  the  said  plaintiff  hereby  expressly 
waiving  a  trial  by  a  sheriff's  jury  of  the  right  of  prop- 
erty, ....  require  of  said  sheriff  that  he  shall  re- 
tain said  property,  under  such  levy,  and  sell  the  same, 
and  apply  the  proceeds  thereof  to  the  satisfaction  of 
said  judgment,  interest  and  costs  of  suit; 

Now,  therefore,  the  condition  of  this  obligation  is 
such  that  if  the  said  .  .  .  .,  as  principal,  and  ....  and 
.  .  .  .,  as  sureties,  their  heirs,  executors  and  adminis- 
trators, shall  well  and  truly  indemnify  and  save  harm- 
less him,  the  said  sheriff,  his  heirs,  executors,  adminis- 
trators and  assigns,  of  and  from  all  and  any  damages, 
expenses,  costs  and  charges,  including  all  counsel 
fees  which  he,  the  said  sheriff,  his  heirs,  executors, 
administrators  or  assigns,  may  incur  in  consequence 
of  the  legal  enforcement  of  the  payment  of  the 
penalty  of  this  bond,  and  against  all  loss  and  lia- 
bility which  he,  the  said  sheriff,  his  heirs,  executors, 
administrators  or  assigns,  shall  sustain  or  in  anywise 


543  FORMS.  §  876 

be  put  to,  for  or  by  reason  of  the  attachment,  seizing, 
levying,  taking,  retention  in  his  custody,  or  selling  by 
him,  the  said  sheriff,  under  said  writ,  of  the  property 
claimed  as  aforesaid. 

And  that  it  may  be  lawful  for  the  said  sheriff,  his 
heirs,  executors,  administrators  or  assigns,  to  bring 
suit  against  the  principal  and  sureties  hereto,  or  either 
of  them,  or  their  or  either  of  their  executors,  adminis- 
trators or  assigns,  immediately  upon  the  rendition  of 
any  judgment  against  the  plaintiff  in  such  cause,  or 
against  the  said  sheriff,  his  heirs,  executors,  adminis- 
trators or  assigns.  And  that  said  sheriff  shall  not  be 
required  first  to  pay  the  said  judgment  in  order  to 
entitle  him  or  his  legal  representatives  to  maintain 
such  suit  and  recover  judgment  thereon — then  the 
above  obligation  to  be  void,  otherwise  to  remain  in 
full  force  and  virtue. 

In  case  suit  or  suits  at  law,  or  in  equity,  or  any 
proceeding  to  be  brought  against  the  said  .  .  .  .,  sher- 
iff, or  against  him  individually,  or  against  him  in 
any  capacity,  jointly  with  other  person  or  persons, 
or  alone,  for  or  on  account  of  the  property  so  levied 
upon,  or  for  the  conversion  of  the  same,  the  said  .... 
shall  and  may  select  his  own  counsel  to  act  in  any 
such  matter  with  the  attorney  or  attorneys  of  the  prin- 
cipal in  this  bond  named,  and  the  reasonable  fees  of 
such  counsel  shall  be  a  charge  against  said  principal 
and  be  secured  by  this  bond.  So,  likewise,  in  case 
of  suit  or  any  event  requiring  the  advice  of  counsel 
in  and  about  the  custody  or  detention  of  said  prop- 
erty, the  said  ....  shall  be  at  liberty  to  consult  coun- 
sel of  his  own  choice,  and  the  reasonable  fee  of  such 
counsel  shall  be  secured  by  this  bond.  In  addition, 
and  as  cumulative  to  remedy  by  suit  against  the  sure- 


§  876  SHERIFFS  AND  CONSTABLES.  544 

ties  hereto,  it  is  and  shall  be  the  right  and  privilege 
of  the  said  .  .  .  .,  immediately  upon  the  rendition  of 
any  judgment  against  the  plaintiff  in  this  cause,  or 
against  the  said  .  .  .  .,  to  apply  in  the  court  wherein 
said  judgment  was  rendered,  and,  upon  filing  this 
bond,  to  have  judgment  thereon  rendered  in  his  favor, 
against  the  principal  and  sureties  hereon,  for  the  full 
amount  of  any  such  judgment,  including  all  costs, 
damages,  expenses  and  counsel  fees  as  the  said  .... 
may  have  incurred  in  the  said  action,  as  well  as 
counsel  fees  for  advice,  and  expense  of  keeping  or 
storing  property  kept  hereinunder.  And  the  prin- 
cipal and  sureties  hereto  expressly  waive  any  notice 
of  any  such  application  and  consent  to  the  entry  of 
such  judgment,  consenting  and  stipulating  also  that 
the  estimate  of  said  ....  as  to  the  amount  of  expenses, 
counsel  fees,  storage  and  the  like,  shall  be  final,  bind- 
ing and  conclusive.  The  remedies  herein  provided 
shall  not  exclude  any  other  legal  relief,  but  are  cumu- 
lative to  the  other  rights,  legal  and  equitable,  of  said 

In  case  of  any  recovery  against  said    ..,., 

growing  out  of  the  seizure  or  detention  of  the  prop- 
erty herein  mentioned,  then,  in  any  proceeding  by 
said  ....  upon  this  bond,  any  defense  based  upon  il- 
legality of  the  consideration  hereof,  or  the  unlawful- 
ness of  the  act  or  acts  of  said  .  .  .  . ,  as  sheriff  or  other- 
wise, is  hereby  expressly  waived. 

Sealed  and  delivered  in  presence  of       


545  FORMS.  §§  877,  878 

§  877.    Notice  of  sheriff's  sale  of  personal  prop- 
erty.     ( California. ) 


vs. 


Under  and  by  virtue  of  an  execution  issued  out  of 
the  ....  Court  of  the  ....  County  of  .  .  .  .,  State  of 
.  .  .  .,  and  to  me  directed  and  delivered  for  a  judg- 
ment rendered  in  said  court,  on  the  ....  day  of  .  .  .  ., 
A.  D.  19 .  . ,  in  favor  of  .  .  .  . ,  and  against  .  .  .  . ,  for  the 
sum  of  $....,  in  .  .  .  .,  together  with  costs  of  suit  and 
interest,  I  have  levied  on  all  the  right,  title,  claim 
and  interest  of  said  defendant,  of,  in  and  to  the  fol- 
lowing property,  to  wit:  ....    (description). 

Notice  is  hereby  given  that  on  .  .  .  .,  the  ....  day 
of  .  .  .  .,  A.  D.  19.  .,  at  .  .  .  .  o'clock  .  .  M.,  of  said  day, 
I  will  sell  all  the  right,  title  and  interest  of  said  .  .  .  ., 
or  either  of  them,  in  and  to  the  above  described  prop- 
erty, or  so  much  thereof  as  may  be  necessary  to  satisfy 
plaintiff's  claim,  besides  all  costs,  interest  and  ac- 
cruing costs. 

The  sale  will  take  place  at  .  .  .  .,  at  public  auction, 
for  cash  in  hand,  to  the  highest  and  best  bidder. 

Dated,   ,   19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

§  878.    Certificate  of  sale  of  personal  property. 

I, ,  Sheriff  of  the  County  of ,  State  of 

,  do  hereby  certify  that,  under  and  by  virtue 

of  an  execution  issued  out  of  the  ....  Court  of  the 
said  County  of  ...  .  in  a  certain  action  lately  pending 
in  said  court,  at  the  suit  of   .  .  .  .,  plaintiff,  against 


§  879  SHERIFFS  AND  CONSTABLES.  54^ 

,  defendant,  attested  the  ....  day  of  .  .  .  .,  19.  ., 

by  which  I  was  commanded  to  make  the  sum  of  .... 
dollars,  with  interest  and  costs,  to  satisfy  the  judgment 
in  said  action  out  of  the  personal  property  of  said 
defendant  if  sufficient  personal  property  could  be 
found,  all  as  more  fully  appears  by  the  said  writ, 
reference  thereunto  being  hereby  made ;  I  have  levied 

on,  and  on  the day  of ,  19.  .,  at  .  .  o'clock, 

A.  M.,  at  the  Court  House  door  in  the  City  of  .... 

in  said  County  of ,  duly  sold  at  public  auction, 

according  to  law,  and  after  due  and  legal  notice,  to 
.  .  .  .,  who  made  the  highest  bid  therefor  at  such  sale, 
for  the  sum  of  $.  .  .  .  in  ....  coin,  which  was  the 
whole  price  paid  therefor,  all  the  right,  title  and  in- 
terest of  the  said  judgment  debtor,  .  .  .  . ,  in  and  to  the 
following  described  personal  property,  to  wit:  .... 
(description  of  property). 

Dated,  this  ....  day  of  .  .  .  .,  19.  . 

,  Sherifif. 

By   ,  Deputy  Sheriff. 

§  879.    Certificate  of  sale  of  corporate  stock. 

I, ,  Sheriff  of  the  County  of ,  State 

of ,  do  hereby  certify  that,  under  and  by  virtue 

of  the  final  judgment  and  decree  of  the  ....  Court 
of  the  County  of  .  .  .  .,  State  of  .  .  .  .,  in  a  certain 
action  lately  pending  in  said  court,  at  the  suit  of  .  .  .  . , 
plaintiff,  and  against  .  .  .  .,  defendant,  duly  certified 
to  me  under  the  seal  of  said  Superior  Court  on  the 
....  day  of  .  .  .  .,  19.  .,  and  to  me,  as  such  sheriff, 
duly  directed  and  delivered,  whereby  I  was  com- 
manded to  sell  the  hereunto  annexed  certificate  of 
stock  according  to  law,  and  apply  the  proceeds  of 


547 


FORMS.  §§880,881 


such  sale  towards  the  satisfaction  of  the  judgment  in 
said  action,  amounting  to  the  sum  of  $....,  in  United 
States  gold  coin,  with  interest  and  costs  of  suit;  on 

the day  of ,  19.  .,  at  ....  o'clock,  .  .  M.,  at 

the  Court  House  door,  in  the  said  County  of  .  .  .  ., 
I  duly  sold  at  public  auction,  according  to  law,  and 
after  due  and  legal  notice,  to  .  .  .  . ,  who  made  the 
highest  bid  therefor,  at  such  sale,  for  the  sum  of 
$....,  in  United  States  gold  coin,  which  was  the 
whole  price  paid  for,  the  hereunto  annexed  certifi- 
cate of  stock  in  said  order  of  sale  described. 

Given  under  my  hand,  this  ....  day  of  .  .  .  .,  19.  .^ 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

§  880.    Order  for  levy  and  sale  of  real  estate. 

In  the   ....   Court  of  the  County  of   .  .  .  .,  State 
of  ...  . 


vs. 


To  .  .  .  . ,  Sheriff*  of  ....  County: 

You  are  hereby  instructed  to  levy  upon  and  sell, 
by  virtue  of  the  accompanying  writ,  in  the  above  en- 
titled suit,  the  following  described  property,  stand- 
ing on  the  records  of  ....  County  in  the  name  of 
....    (description) . 


Dated,  .  .  .  .,  19.  . 


Attorney  for  Plaintiff. 


§  881.    Notice  of  levy  on  real  estate  under  exe- 
cution.     ( California. ) 


§  882  SHERIFFS  AND  CONSTABLES.  548 

[TO  ATTACH  TO  COPY  OF  WRIT.] 

Sheriff's  Office,  j  ^^ 
County  of  ....  J 

Notice  is  hereby  given  that,  under  and  by  virtue 
of  a  writ  of  execution,  issued  out  of  the  ....  Court 

of  the  County  of ,  State  of ,  of  which  the 

annexed  writ  is  a  true  copy,  I  have  this  day  attached 
and  levied  upon  all  the  right,  title,  claim  and  interest 
of  .  .  .  .,  defendant.  .,  or  either  of  them,  of,  in  and  to 
the  following  described  real  estate,  standing  on  the 
records  of  ...  .  County  in  the  name  of  .  .  .  .,  and  par- 
ticularly described  as  follows: (description  of 

property). 

,  Sherift. 

By   ,  Deputy  Sheriff. 

Dated,   ,   19.  . 

§  882.    Notice  of  sale  of  real  estate  under  exe- 
cution.     ( California. ) 


vs. 


No..  ..     Sheriflf's  Sale. 


By  virtue  of  an  execution  issued  out  of  the  .... 
Court  of  the  ....  County  of  .  .  .  .,  State  of  .  .  .  ., 
wherein  .  .  .  .,  plaintiff,  and  .  .  .  .,  defendant,  upon  a 
judgment  rendered  the  ....  day  of  .  .  .  .,  A.  D.  19.  ., 
for  the  sum  of  ....  dollars.  United  States  gold  coin, 
besides  costs  and  interest,  I  have  this  day  levied  upon 
all  the  right,  title,  claim  and  interest  of  said  defend- 
ant, .  .  .  .,  of,  in  and  to  the  following  described  real 
estate,  to  wit:   ....    (description). 

Public  notice  is  hereby  given  that  I  will,  on  .  .  .  ., 
the  ....  day  of  .  .  .  . ,  A.  D.  19 .  . ,  at  .  .  .  .  o'clock  .  .  M. 


549  FORMS.  §  883 

of  said  day,  in  front  of  the  Court  House  door  of  the 
County  of  .  .  .  .,  sell  at  public  auction,  for  United 
States  gold  coin,  all  the  right,  title,  claim  and  in- 
terest of  said  defendant,  .  .  .  .,  of,  in  and  to  the  above 
described  property,  or  so  much  thereof  as  may  be 
necessary  to  raise  sufficient  money  to  satisfy  said  judg- 
ment, with  interest  and  costs,  etc.,  to  the  highest  and 

best  bidder. 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

Dated, ,  19.  . 

§  883.    Notice  of  foreclosure  sale  by  sheriff. 

No....     Sheriff's  Sale. 


vs 


Under  and  by  virtue  of  an  order  of  sale  and  decree 
of  foreclosure  and  sale,  issued  out  of  the  ....  Court 

of  the County  of ,  of  the  State  of , 

on  the  ....  day  of  .  .  .  .,  A.  D.  19.  .,  in  the  above  en- 
titled action,  wherein ,  the  above  named  plain- 
tiff, obtained  a  judgment  and  decree  of  foreclosure 

and  sale  against ,  defendant,  on  the  ....  day 

of  .  .  .  .,  A.  D.  19.  .,  for  the  sum  of   dollars, 

in  United  States  gold  coin,  besides  interest,  costs,  and 

counsel  fees ,  which  said  decree  was,  on  the 

....  day  of  .  .  .  .,  A.  D.  19.  .,  recorded  in  judgment 
book  ....  of  said  court,  at  page  .  .  .  .,  I  am  com- 
manded to  sell  th.  .   certain  lot,  piece  or  parcel  of 

land,  situate,  lying  and  being  in   County  of 

,  State  of ,  and  bounded  and  described 

as  follows: (description). 

Public  notice  is  hereby  given  that,  on   ....,  the 


§  884  SHERIFFS  AND  CONSTABLES.  550 

....  day  of  .  .  .  .,  A.  D.  19.  .,  at  .  .  .  o'clock  .  .  M.  of 
that  day,  in  front  of  the  Court  House  door  of  the 

County  of ,  I  will,  in  obedience  to  said  order 

of  sale  and  decree  of  foreclosure  and  sale,  sell  the 
above  described  property,  or  so  much  thereof  as  may 
be  necessary  to  satisfy  said  judgment,  with  interest 
and  costs,  etc.,  to  the  highest  and  best  bidder,  for  gold 
coin  of  the  United  States. 

Dated,   ,  19.  . 

,  Sheriff. 

By   ,  Deputy  Sheriff. 

§884.    Notice  of  sale  by  commissioner.      {Cali- 
fornia.) 


vs. 


-   No Commissioner's  Sale. 


Under  and  by  virtue  of  a  judgment  and  decree  of 
foreclosure  and  an  order  of  sale  issued  out  of  the 
....  Court  of  the  County  of  .  .  .  .,  State  of  Califor- 
nia, on  the  ....  day  of  .  .  .  .,  A.  D.  19.  .,  in  the  above 
entitled  action,  wherein  .  .  .  .,  the  above  named  plain- 
tiff, obtained  a  judgment  and  decree  of  foreclosure 
and  sale  against  .  .  .  .,  defendant,  on  the  ....  day  of 
.  .  .  .,  A.  D.  19.  .,  for  the  sum  of  ....  dollars  in  gold 
coin  of  the  United  States,  besides  interest,  costs  and 
counsel  fees,  which  said  decree  was,  on  the  ....  day 
of  .  .  .  .,  A.  D.  19.  .,  recorded  in  judgment  book  .... 
of  said  court,  at  page  ....,  I  am  commanded  to 
sell:   ....    (description  of  property). 

Public  notice  is  hereby  given  that  on  .  .  .  .,  the 
....  day  of  .  .  .  .,  A.  D.  19.  .,  at  .  .  .  o'clock  .  .  M.  of 
that  day,  in  front  of  the  Court  House  door  of  the 


551 


FORMS.  §  885 


County  of  .  .  .  .,  I  will,  in  obedience  to  said  judg- 
ment, decree  and  order  of  sale,  sell  the  above  de- 
scribed property,  or  so  much  thereof  as  may  be  neces- 
sary to  raise  sufficient  money  to  satisfy  said  judgment 
and  decree,  with  interest  and  costs,  etc.,  to  the  highest 
and  best  bidder,  for  gold  coin  of  the  United  States. 

Dated,   ,  i9-  • 

,  a  Commissioner 

appointed  by  said  ....  Court. 

§  885.    Certificate  of  execution  sale  of  real  estate. 

(California.) 

In  the   ....    Court  of  the   ....    County  of   .  .  .  ., 
State  of  .... 


vs. 


I, ,  Sheriff  of  the  County  of  .  .  .  . ,  do  hereby 

certify  that  by  virtue  of  an  execution  in  the  above 
entitled  case,  attested  the  ....  day  of  .  .  .  .,  19.  .,  by 
which  I  was  commanded  to  make  the  amount  of  ...  . 
dollars,  ....  to  satisfy  the  judgment  in  said  action, 
with  costs  and  interest  thereon,  out  of  the  personal 
property  of  .  .  .  .,  the  above  defendant.  .,  and  if  suf- 
ficient personal  property  could  not  be  found,  then 
out  of  the  real  property  belonging  to  the  said  .  .  .  ., 
on  the  ....  day  of  .  .  .  .,  A.  D.  19.  .,  or  at  any  time 
thereafter,  as  by  the  said  writ,  reference  being  there- 
unto had,  more  fully  appears;  I  have  levied  on  and 
this  day  sold  at  public  auction,  according  to  the  stat- 
ute in  such  cases  made  and  provided,  to  .  .  .  .,  who 
was  the  highest  bidder,  for  the  sum  of  ....  dollars, 
.  .  .  . ,  which  was  the  whole  price  paid  by  him  for  the 


§  886  SHERIFFS  AND  CONSTABLES.  552 

right,  title  and  interest  of  said  defendant.  . ,  of,  in  and 

to  the  real  estate  described  as  follows,  to  wit: 

(description). 

That  the  price  of  each  distinct  lot  and  parcel  was 
as  follows:  ....,  Lot  B,  in  Block  2,  was  sold  to 
....  for  $50,  lawful  money  of  the  United  States. 
Lot  C,  in  Block  4,  was  sold  to  ....  for  $70,  lawful 
money  of  the  United  States. 

And  that  the  said  real  estate  is  subject  to  redemp- 
tion, in  .  .  .  .,  pursuant  to  the  statute  in  such  cases 
made  and  provided. 

Dated  at  .  .  .  .,  this  ....  day  of  .  .  .  .,  A.  D.  19.  .   . 

,  Sheriff. 

By ,  Deputy  Sheriff. 

§  886.    Certificate  of  sale  under  foreclosure. 

[Title  of  Court  and  Cause.] 

I, ,  Sheriff  of  the  County  of  .  .  .  .,  State  of 

.  .  .  .,  do  hereby  certify  that,  under  and  by  virtue  of 
the  final  judgment  and  decree  of  the  ....  Court  of 
the  ....  County  of  .  .  .  .,  of  the  State  of  .  .  .  .,  in  a 
certain  action  lately  pending  in  said  ....  Court,  at 
the  suit  of  ....,  plaintiff..,  and  against  ....,  de- 
fendant, duly  certified  to  me  under  the  seal  of  said 
....  Court,  the  ....  day  of  .  .  .  .,  A.  D.  19.  .,  and 
an  order  of  sale  thereon,  issued  to  me  as  such  sheriff, 
duly  directed  and  delivered,  whereby  I  was  com- 
manded to  sell  the  property  hereinafter  described, 
according  to  law,  and  apply  the  proceeds  of  such  sale 
towards  the  satisfaction  of  the  judgment  in  said  ac- 
tion, amounting  to  the  sum  of  ....  dollars,  in  Unit- 
ed States  gold  coin,  with  interest,  counsel  fees,  taxes 
and  costs  of  suit,  amounting  in  all  to  the  sum  of  .  .-.  . 


553  FORMS.  §  887 

dollars,  on  the  ....  day  of  .  .  .  .,  A.  D.  19.  .,  at  .  .  . 
o'clock,  .  .  M.,  at  the  Court  House  door,  in  the  City 
of  .  .  .  .,  in  the  said  County  of  .  .  .  .,  I  duly  sold  at 
public  auction,  according  to  law,  and  after  due  and 
legal  notice,  to  .  .  .  .,  who  made  the  highest  bid  there- 
for at  such  sale,  for  the  sum  of  ....  dollars,  in  Unit- 
ed States  gold  coin,  .  .  .  .,  which  was  the  whole  price 
paid,  the  real  estate  in  said  order  of  sale  described, 

as  follows,  to  wit:   (description  of  property 

sold). 

And  I  do  hereby  further  certify  that  the  said  prop- 
erty was  sold  in  ...  .  lots  ....  or  parcels,  as  follows: 
Lot  I  in  Block  5  was  sold  to  ....  for  $1,000,  United 
States  gold  coin.  Lot  2  in  Block  5  was  sold  to  .... 
for  $800,  United  States  gold  coin.  That  the  said  sum 
of  ....  dollars,  in  United  States  gold  coin,  was  the 
highest  bid  made,  and  the  whole  price  paid  therefor. 

And  that  the  same  is  subject  to  redemption,  in 
United  States  gold  coin,  pursuant  to  the  statute  in 
such  cases  made  and  provided. 

Dated  at  .  .  .  .,  this  ....  day  of  .  .  .  .,  A.  D.  19.  . 

,  Sheriff. 

By ,  Deputy  Sheriff. 

§  887.    Certificate  of  redemption  of  real  estate. 

State  of 


County  of / 

I, ,  Sherifif  of  the  County  of  .  .  .  .,  State  of 

.  .  .  .,  do  hereby  certify  that  on  the  .  .  day  of  .  .  .  ., 
19..,  Mary  Jucksch,  judgment  debtor  under  the 
judgment  in  the  action  hereinafter  mentioned,  in  due 
form  of  law,  tendered  and  paid  to  me  the  sum  of 
$188,  being  in  full  pa3^ment  of  the  purchase  price 


§  888  SHERIFFS  AND  CONSTABLES.  554 

paid  by  the  purchaser  at  the  sale  of  the  real  property 
hereinafter  described,  made  by  me  on  the  ....  day  of 
.  .  .  .,  19.  .,  under  the  decree  of  foreclosure  and  sale, 
issued  to  me  out  of  the  Superior  Court  of  the  City 
and  County  of  San  Francisco,  State  of  California 
(No.  22764),  in  the  action  of  La  Societe  Francaise 
d'Epargnes  et  de  Prevoyance  Mutuelle  vs.  The 
Berkeley  Land  and  Town  Improvement  Association, 
Mary  Jucksch  et  al.,  including  one  per  cent  per 
month  interest  thereon,  up  to  the  time  of  redemption, 
together  with  the  amount  of  all  taxes  and  assessments 
paid  by  the  purchaser  on  said  property,  after  said 
purchase,  and  interest  thereon.  That,  thereupon,  I 
received  said  sum  of  money  so  tendered  and  paid  as 
aforesaid,  and  have  granted  and  executed  to  said 
Mary  Jucksch  this,  my  certificate  of  redemption  of 
said  property,  in  conformity  with  the  statute  in  such 
case  made  and  provided.  The  premises  so  redeemed, 
or  intended  to  be  redeemed,  are  described  as  follows, 

to  wit: (description). 

In  witness  whereof,  I  have  hereunto  set  my  hand 
this  ....   day  of  .  .  .  .,  19.  . 

,  Sheriff. 

By ,  Deputy  Sheriff. 

§  888.    Receipts  to  sheriff. 

$.  .  .  .  Oakland,.  .  .  .,  19.  . 

Received  from    ,   Sheriff  of    ....    County, 

.  .  .  .,  in  United  States  gold  coin,  being  the  amount 

of  sale  of  real  estate  in  the  case  of   .  .  .  .,  Superior 

Court,  County  of  .  .  .  .,  after  deducting  sheriff's  costs 

and  disbursements,  amounting  to  $.  .  .  . 

) 

Plaintiff's  Attorney. 


555 


FORMS.  §  889 


$.  . .  .  Oakland,  .  .  .  .,  19.  . 

Received  from    ,   Sheriff  of    County, 

100  dollars,  in  United  States  gold  coin,  being  the 

amount  of  judgment,  interest,  costs,  etc.,  due  plain- 
tiff,   ,  in  the  case  of vs ,  Superior  Court, 

....    County  of   ...  .  > 

Plaintiff's  Attorney. 

§  889.    Deed  under  execution  sale.     (California.) 

This  Indenture,  made  this  day  of  ...., 

A.  D.  19.  .,  between ,  Sheriff  of  the  County  of 

,  of  the  first  part,  and ,  of  the County 

of ,  and  State  of ,  of  the  second  part:— 

Whereas,  by  virtue  of  a  writ  of  execution  issued 

out  of,  and  under  the  seal  of,  the Court  of  the 

County  of  .  .  .  . ,  State  of  .  .  .  . ,  attested  the day 

of   .  .  .  .,  A.  D.   18.  .,  upon  a  judgment  recovered  in 

said  court  on  the day  of ,  A.  D.  19 .  . ,  in  favor 

of  .  .  .  .,  and  against  .  .  .  .,  to  the  said  sheriff  directed 
and  delivered,  commanding  him  that  of  the  personal 
property  of  the  said  judgment  debtor  in  his  county, 
he  should  cause  to  be  made  certain  moneys  in  the  said 
writ  specified,  and  if  sufficient  personal  property  of 
the  said  judgment  debtor  could  not  be  found,  that 
then  he  should  cause  the  amount  of  said  judgment 
to  be  made  out  of  the  lands,  tenements  and  real  prop- 
erty belonging  to  him  on  the  ....  day  of  .  .  .  . ,  A.  D. 
19.  .,  or  at  any  time  afterwards; 

And,  whereas,  because  sufficient  personal  property 
of  the  said  judgment  debtor  could  not  be  found, 
whereof  he,  the  said  sheriff,  could  cause  to  be  made 
the  moneys  specified  in  said  writ,  he,  the  said  sheriff, 
did,  in  obedience  to  said  command,  levy  on,  take  and 
seize  all  the  estate,  right,  title  and  interest  which  the 


§  889  SHERIFFS  AND  CONSTABLES.  556 

said  judgment  debtor  so  had  of,  in  and  to  the  lands, 
tenements,  real  estate  and  premises  hereinafter  par- 
ticularly set  forth  and  described,  with  the  appur- 
tenances, and  did,  on  the  ....  day  of  .  .  .  .,  A.  D.  19.  ., 
sell  the  said  premises,  at  public  auction,  at  the  Court 
House  door,  in  the  City  of  .  .  .  . ,  County  of  .  .  .  . ,  be- 
tween the  hours  of  nine  in  the  morning  and  five  in 
the  afternoon  of  that  day,  namely:  at  .  .  .  o'clock 
.  .  M.,  after  first  having  given  notice  of  the  time  and 
place  of  such  sale,  by  advertising  the  same  according 
to  law;  at  which  sale  the  said  premises  were  struck 
off  and  sold  to  .  .  .  .,  for  the  sum  of  .  .  .  .,  United 
States  gold  coin,  he,  the  said  .  .  .  .,  being  the  highest 
bidder,  and  that  being  the  highest  sum  bid,  and  the 
whole  price  paid  for  the  same; 

And,  whereas,  the  said  sheriff,  after  receiving  from 
said  purchaser  the  said  sum  of  money  so  bid  as 
aforesaid,  gave  to  him  such  certificate  as  is  by  law 
directed  to  be  given,  and  filed  in  the  office  of  the 
recorder  of  the  County  of  ....  a  duplicate  of  such 
certificate; 

And,  whereas,  twelve  months  after  such  sale  have 
expired  without  any  redemption  of  the  said  premises 
having  been  made; 

Now  this  indenture  witnesseth,  that  I,  ....,  the 
sheriff  aforesaid,  and  party  hereto  of  the  first  part, 
by  virtue  of  said  writ,  and  in  pursuance  of  the  statute 
in  such  case  made  and  provided,  for  and  in  consid- 
eration of  the  sum  of  money  above  mentioned,  to  him 
in  hand  paid,  as  aforesaid,  by  the  said  party  of  the 
second  part,  the  receipt  whereof  is  hereby  acknowl- 
edged, hath  granted,  bargained,  sold,  conveyed  and 
confirmed,  and  by  these  presents  doth  grant,  bargain, 
sell,  convey  and  confirm  unto  the  said  .  .  .  . ,  his  .... 


557 


FORMS.  §  890 


heirs  and  assigns,  all  the  estate,  right,  title  and  inter- 
est of  the  said  .  .  .  .,  which  ....  had  on  the  said  .... 
day  of  .  .  .  .,  A.  D.  19.  .,  or  at  any  time  afterwards,  or 
now  ....   of,  in  and  to  all  the  following  described 

premises,  viz.:   (description),  together  with 

all  and  singular  the  hereditaments  and  appurtenances 
thereunto  belonging,  or  in  anywise  appertaining,  to 
have  and  to  hold  the  said  above  mentioned  and  de- 
scribed premises,  with  the  appurtenances,  unto  the 
said  .  .  .  .,  heirs  and  assigns  forever,  as  fully  and  ab- 
solutely as  he,  the  sheriff  aforesaid,  can,  may  or  ought 
to,  by  virtue  of  the  said  writ,  and  of  the  statute  in  such 
case  made  and  provided,  grant,  bargain,  sell,  release, 
assign,  convey  and  confirm  the  same. 

In  witness  w^hereof,  the  said  sheriff,  the  party  of 
the  first  part  to  these  presents,  hath  hereunto  set  his 
hand  and  seal  the  day  and  year  first  above  written. 
Sealed  and  delivered  in 


the' presence  of 


Sheriff  of  the  County  of 
,  State  of 


§  890.    Sheriff's    deed    under    foreclosure    sale. 

[California.) 

This  Indenture,  made  the  ....  day  of ,  in 

the  year  of  our  Lord  one  thousand  nine  hundred  and 
.  .  .  .,  between  .  .  .  .,  Sheriff  of  the  County  of  .  .  .  ., 
State  of  .  .  .  .,  the  party  of  the  first  part,  and  .  .  .  ., 
the  part.  .  of  the  second  part,  witnesseth: 

Whereas,  in  and  by  a  certain  judgment  or  decree, 

made  and  entered  by  the Court  of  the 

County  of  .  .  .  .,  State  of  .  .  .  .,  on  the  ....  dav  of 
....  A.  D.  19.  .,  in  a  certain  action  then  pending  in 
said  court,  wherein  .  .  .  .was  plaintiff,  and  ....  was 


§  890  SHERIFFS  AND  CONSTABLES.  558 

defendant,  and  of  which  said  judgment  or  decree  a 
certified  copy,  with  an  order  of  sale  from  said  court, 
was  delivered  to  said  party  of  the  first  part,  as  such 
sheriff,  for  execution,  it  was  among  other  things  or- 
dered, adjudged  and  decreed,  that  all  and  singular 
the  mortgaged  premises  described  in  the  complaint  in 
said  action,  and  specifically  described  in  said  judg- 
ment or  decree,  should  be  sold  at  public  auction  by 
the  sheriff  of  the  said  County  of  .....  in  the  manner 
required  by  law,  and  according  to  the  course  and 
practice  of  said  court;  that  such  sale  be  made  .  .  .  ., 
in  the  said  County  of  .  .  .  .,  between  the  hours  of  nine 
o'clock  in  the  forenoon  and  five  o'clock  in  the  after- 
noon on  such  day  as  the  said  sheriff  should  appoint, 
that  any  of  the  parties  to  said  action  might  become 
the  purchaser  at  such  sale;  and  that  said  sheriff 
should  execute  the  usual  certificates  and  deeds  to  the 
purchaser  or  purchasers,  as  required  by  law; 

And,  whereas,  the  said  sheriff  did  at  the  hour  of 
....  o'clock  .  .  M.,  on  the  ....  day  of  .  .  .  .,  A.  D. 
19.  .,  after  due  public  notice  had  been  given,  as  re- 
quired by  the  laws  of  this  State,  and  the  course  and 
practice  of  said  court,  duly  sell  at  public  auction  in 
the  said  County  of  .  .  .  .,  agreeably  to  said  judgment 
or  decree,  and  the  provisions  of  law,  the  premises  in 
the  said  decree  or  judgment  mentioned,  at  which  sale 
the  premises  in  said  judgment  or  decree,  and  herein- 
after described,  were  fairly  struck  off  to  the  said 
.  .  .  .,  the  said  part.  .  hereto  of  the  second  part,  for 
the  sum  of  ....  dollars,  ....  being  the  highest  bid- 
der .  .  .  .,  and  that  being  the  highest  sum  bid  for  the 
same; 

And,  whereas,  the  said  ....  thereupon  paid  to  the 
said  sheriff  the  sum  of  money  so  bid  by  .  .  .  .  ; 


559  FORMS.  §  890 

And,  whereas,  the  said  sheriff  thereupon  made  and 
issued  the  usual  certificate  in  duplicate  of  the  said  sale 
in  due  form  of  law,  and  delivered  one  thereof  to  the 
said  purchaser,  .  .  .  .,  and  caused  the  other  to  be  filed 
in  the  omce  of  the  County  Recorder  of  said  County 
of  ....  ; 

And,  whereas,  more  than  twelve  months  have 
elapsed  since  the  date  of  said  sale,  and  no  redemp- 
tion has  been  made  of  the  premises  so  sold  as  afore- 
said, by  or  on  behalf  of  the  said  judgment  debtor,  the 
said  .  .  .  .,  or  by  or  on  behalf  of  any  other  person, 
....  (recital  of  any  assignment  that  may  have  been 
made) . 

Now  this  indenture  witnesseth:  That  the  said 
party  of  the  first  part,  the  said  sheriff,  in  order  to 
carry  into  effect  the  sale  so  made  by  him  as  aforesaid, 
in  pursuance  of  said  judgment  or  decree,  and  in  con- 
formity to  the  statute  in  such  case  made  and  provided, 
and  also  in  consideration  of  the  premises  and  of  the 
said  sum  of  ...  .  dollars,  ....  so  bid  and  paid  to  him 
by  the  said  purchaser,  .  .  .  .,  the  said  .  .  .  .,  the  receipt 
whereof  is  hereby  acknowledged,  has  granted,  bar- 
gained, sold  and  conveyed,  and  by  these  presents  does 
grant,  bargain,  sell  and  convey  unto  the  said  part.  . 
of  the  second  part,  and  to  ....  heirs  and  assigns  for- 
ever, all  th.  .  certain  lot..,  piece.,  or  parcel.,  of 
land  situate,  lying,  and  being  in  the  said  County  of 
.  .  .  .,  State  of   .  .  .  .,  and  bounded  and  particularly 

described  as  follows,  to  wit:   (description). 

Together  with  all  and  singular  the  tenements,  here- 
ditaments and  appurtenances  thereunto  belonging,  or 
in  anywise  appertaining,  and  the  reversion  and  rever- 
sions, remainder  and  remainders,  rents,  issues  and 
profits  thereof;  and  also  all  the  estate,  right,  title  and 


§  891  SHERIFFS  AND  CONSTABLES.  560 

interest,  property,  possession,  claim  and  demand 
whatsoever,  as  well  in  law  as  in  equity,  of  the  said 
party  of  the  first  part,  and  of  said  defendant,  .  .  .  ., 
of,  in  and  to  the  said  premises,  and  every  part  and 
parcel  thereof. 

To  have  and  to  hold,  all  and  singular,  the  said 
premises  hereby  conveyed,  or  intended  so  to  be,  to- 
gether with  the  appurtenances,  unto  the  said  part.  . 
of  the  second  part,  ....  heirs  and  assigns,  to  .... 
own  proper  use,  benefit  and  behoof  forever. 

In  witness  whereof,  the  said  party  of  the  first  part 
to  these  presents,  has  hereunto  set  his  hand  and  seal 
the  day  and  year  first  above  written. 

Signed,  sealed  and  deliv- 
ered in  the  presence  of 

Sheriff  of  the  County  of 
.  .  .  .,  State  of  .... 

§  891.  Notice  of  creditors'  meeting  after  assign- 
ment by  debtor.      {California.) 

Sheriff's  Office, 


County  of  ....  / 

,    ••••,    I9-- 

Notice  is  hereby  given  that  a  meeting  of  the  cred- 
itors of  ....  will  be  held  at  my  office,  in  the  City  of 
.  .  .  .,  County  of  .  .  .  .,  State  of  .  .  .  .,  on  .  .day,  the 
....  day  of  .  .  .  .,  19.  .,  at  ...  o'clock,  .  .  M.,  for  the 
purpose  of  electing  one  or  more  assignees  in  my  place 
and  stead  as  assignee  of  said  .  .  .  .,  for  the  benefit  of 
....  creditors. 

Dated,  .  .  .  .,  19.  .  , 

Sheriff  of  the  County  of  .... 


561  FORMS.  §  892 

§  892.  Assignment  by  sheriff  for  benefit  of  cred- 
itors.     (California.) 

This  Indenture,  made  this day  of , 

19.  .,  by  and  between  .  .  .  .,  Sheriff  of  the  County 
of  .  .  .  .,  State  of  California,  as  such  sheriff,  and  .... 
witnesseth: 

That,  whereas,  on  the day  of ,  19.  ., 

.  .  .  .,  in  pursuance  of  the  provisions  of  Division  IV, 
Title  3,  Part  2,  of  the  Civil  Code  of  California,  did 
assign  to  said  sheriff  his  property  for  the  benefit  of 
his  creditors,  which  assignment  was  in  writing  and 
was  duly  recorded  in  the  office  of  the  County  Re- 
corder of  said  ....  County  on  the  .  .  day  of  .  .  .  ., 
19..; 

And,  whereas,  the  sheriff  did  thereupon  cause  a 
notice  of  a  meeting  of  the  creditors  of  said  ....  to  be 
sent  by  mail  to  each  creditor  named,  and  to  the  ad- 
dress given  in  said  assignment,  and  which  specified 
the  amount  owing  to  such  creditor,  as  set  forth  in  said 
assignment,  and  notified  them  to  meet  at  his  office  in 
.  .  .  . ,  County  of  .  .  .  . ,  State  of  .  .  .  . ,  on  ....  day, 
the  ....  day  of  .  .  .  .,  19.  .,  at  ...  o'clock  .  .  M.  of 
that  day,  for  the  purpose  of  electing  an  assignee  or 
assignees,  in  his  place  and  stead,  as  assignee  of  the 
property  of  said  .  .  .  .  ; 

And,  whereas,  said  sheriff  did  cause  a  notice  of 
said  meeting  of  creditors  to  be  published  for  one  time 

in  the ,  a  newspaper  published  in  said   

County,  which  county  was  and  is  the  place  of  resi- 
dence of  said  .  .  .  .  ; 

And,  whereas,  at  the  meeting  of  the  creditors  of 
said  .  .  .  .,  held  in  pursuance  of  the  aforesaid  notices, 
which  were  given  and  published  as  required  by  law 
in  such  cases  made  and  provided,  the  said  .  .  .  .,  by  a 


§  893  SHERIFFS  AND  CONSTABLES.  562 

majority,  in  amount  of  the  demands  against  the  said 
....,  present  and  represented  by  proxy,  was  duly 
elected  assignee  in  accordance  with  the  aforesaid  pro- 
visions of  the  said  Civil  Code; 

Now,  therefore,  in  consideration  of  the  premises, 
and  in  pursuance  of  the  law  in  such  cases  made  and 
provided,  I,  ....,  Sheriff  as  aforesaid,  do,  as  such 
sherifif,  hereby  convey,  assign  and  set  over  to  said 
.  .  .  . ,  as  such  assignee,  and  to  his  successors  and  as- 
signs, upon  the  trusts  provided  in  said  title,  all  and 
singular  the  property  of  every  kind  and  description 
so  as  aforesaid  assigned  to  me  by  the  said  .... 

In  witness  whereof,  I  have  hereunto  set  my  hand 
and  seal  this  ....  day  of  .  .  .  .,  19.  . 
Signed,  sealed  and  deliv- 
ered in  the  presence  of 

Sheriff  of  the  County  of 
.  .  .  .,  State  of  .... 

§  893.    Application  for  requisition. 

To  the  Hon ,  Governor  of  the  State  of  .  .  .  .  : 

The  undersigned  respectfully  makes  this  his  ap- 
plication for  a  requisition  upon  the  Governor  of  the 
State  of  ....  for  the  person  of  .  .  .  .,  a  fugitive  from 
justice  from  this  State,  whose  alleged  crime  is  set 
out  in  the  affidavit  and  warrant  accompanying  this 
application,  and  requests  the  appointment  by  your 
Excellency  of  ....  as  a  suitable  person  to  receive  and 
bring  back  to  this  State  said  fugitive  from  justice. 

Dated,  .  .  .  .,  19.  . 


563  FORMS.  §§  894,  895 

§  894.    Affidavit  for  requisition. 

In  the  Justice's  Court  of  ....  Township,  County 
of  .  .  .  .,  State  of  .... 

The  People  of  the  State  of  .... 
vs. 


State  of   '  1  ss 

County  of  ....   J      ■ 

,  being  duly  sworn,  deposes  and  says:  That 

....  stands  charged  in  the  ....  Court  of  ...  .  Town- 
ship, County  of  .  .  .  .,  State  of  .  .  .  .,  with  having,  on 
the  ....  day  of  .  .  .  .,  19.  .,  committed  the  crime  of 
.  .  .  .  ;  that  a  complaint  is  on  file  in  said  court  charg- 
ing said  ....  with  the  commission  of  said  crime,  up- 
on which  complaint  a  warrant  has  been  duly  issued 
by  the  justice  of  said  court  for  the  arrest  of  said  .  .  .  .  ; 
that  said  ....  is  not  now  in  this  State,  but  has  fled  to 
the  State  of  ....  and  is  now,  as  this  affiant  is  in- 
formed and  believes,  in  the  City  of  .  .  .  . ,  in  said  State 
of  .  .  .  .,  and  is  a  fugitive  from  justice. 

Subscribed  and  sworn  to  before  me 
this   ....   day  of   .  .  .  .,  19.  . 


§895.    Trial  jury  summons.      (California.) 

Sheriff's  Office,    ...., 

,    19.  . 

Mr 

Sir:    Having  been  regularly  drawn  as  such,  you 
are  hereby  summoned  to  attend  the  Superior  Court, 

Department  No ,  of County,  at  the  Court 

House,  in  the  City  of  .  .  .  .,  in  said  county,  on  .  .  .  ., 


§§  896,  897       SHERIFFS  AND  CONSTABLES.  564 

the day  of ,  A.  D.  19.  .,  at  ...  o'clock  .  .  M. 

of  that  day,  then  and  there  to  serve  as  a  trial  juror  for 
the  ....  session  of  said  court. 

Herein  fail  not,  under  penalty  of  the  law. 

,  Sheriff. 

By ,  Deputy  Sheriff. 

§896.    Special  jury  summons.      ■^California.) 

Sheriff's  office,   .  .  .  ., 
...  .,   19.. 

Mr 

Sir:   You  are  hereby  summoned  to  attend  the  Su- 
perior Court,  Department  No ,  of  ....  County, 

at  the  Court  House,  in  the  City  of  .  .  .  .,  in  said  coun- 
ty, on  .  .  .  . ,  the  ....  day  of  .  .  .  . ,  A.  D.  1 9 .  . ,  at  .... 
o'clock  .  .  M.  of  that  day,  then  and  there  to  serve  as 
a  trial  juror  for  the  ....  session  of  said  court. 
Herein  fail  not,  under  penalty  of  the  law. 

'.,  Sheriff. 

By ,  Deputy  Sheriff. 

§897.    Grand  jury  summons.       (California.) 

Sheriff's  Office,  ...  ., 
....,19.. 

Mr 

Sir:  Having  been  regularly  drawn  as  such,  you 
are  hereby  summoned  to  be  and  appear  in  the  court 
room  of  Department  ....  of  the  Superior  Court 
of  the  County  of  .  .  .  .,  in  the  Court  House  of  said 
county,  on  ...  .  day,  the  ....  day  of  .  .  .  .,  A.  D.  19.  ., 
then  and  there  to  serve  as  a  grand  juror. 
Herein  fail  not,  under  penalty  of  the  law. 

,  Sheriff. 

By ,  Deputy  Sheriff. 


565  FORMS.  §  898 

§  898.    Monthly    statement    of    fees    to    auditor. 

{California.) 

Sheriff's  Office,  |  gg 
County  of  ....   J    "^^ 

I,   ,  Sheriff  of  said  county,  hereby  certify 

that  the  total  amount  of  fees  due  from  me  to  the 
county  treasury  of  said  county,  for  the  month  of  .  .  .  . , 
19.  .,  as  shown  by  the  fee  book  in  my  office,  is  .... 
dollars  ($.  .  .  .100).  ,  Sheriff. 

By   ,  Deputy  Sheriff. 


State  of   . 
County  of 


ss. 


I, ,  do  swear  that  the  fee  book  in  my  office 

contains  a  true  statement,  in  detail,  of  all  fees  and 
compensation  of  every  kind  and  nature,  for  official 
services  rendered  by  me,  my  deputies  and  assistants, 
for  the  month  of  .  .  .  .,  A.  D.  19.  .,  and  that  said  fee 
book  shows  the  full  amount  received  or  chargeable 
in  said  month  and  since  my  last  monthly  payment; 
and  neither  myself,  nor,  to  my  knowledge  or  belief, 
any  of  my  deputies  or  assistants,  have  rendered  any 
official  service,  except  for  the  county,  which  is  not 
fully  set  out  in  said  fee  book,  and  that  the  foregoing 
statement  thereof  is  true  and  correct. 

Subscribed  and  sworn  to  before  me, 
this  ....  day  of  .  .  .  .,  19.  . 


§§  899,  900       SHERIFFS  AND  CONSTABLES.  566 

§  899.    Semi-annual  statement  of  fees  to  auditor. 

(California.) 

Sheriff's  Office,   1  ^^ 
County  of  ....    J 

I  hereby  certify  that  the  amount  of  fees  earned,  col- 
lected or  chargeable  by  me,  as  ....,  for  the  six 
months  ending  .  .  .  .,  19.  .,  is  ....  dollars  ($....). 

Witness  my  hand  this  ....  day  of  .  .  .  .,  19.  . 

,  Sheriff. 


State  of   '  Iss 

County  of  ....    J  ' 

I, ,  Sheriff  of  the  County  of  .  .  .  . ,  do  swear 

that  the  foregoing  statement  is  true  and  correct. 
Subscribed  and  sworn  to  before  me,  \ 

this  .  .  .  .,  day  of  .  .  .  .,  19.  .  J 


§  900.    Monthly    statement    of    jailer    to    county 
auditor.       (California.) 

List  of  Prisoners  Confined  in  the  County  Jail 
OF  . . .  County  during  the  Month  of  . . . ,  19 . 


Names.  No.  of  Days.         |  Remarks. 

State  of  jgj. 

County  ot  ....   J 

I, ,  Sheriff  of  the  County  of  .  .  .  .,  do  swear 

that  the  foregoing  statement  is  true  and  correct. 

Subscribed  and  sworn  to  before  me, 
this  .  .   .  .day  of  .  .  .  .,  19.  . 


INDEX 


INDEX 

[NOTE. — All  index  of  the  blank  forms  contained  in  Chapter 
XXXII  is  to  be  fonnd  at  the  end  of  this  I'oluuie.] 

ABSENCE  from  the  state,  §  76. 
ACCOUNTS,  falsification  of,  §  51. 
ACCOUNT-BOOKS,  levy  on,  §  261. 
ACT  OF  GOD,  property  lost  by,  §  198. 
ACTIONS  against  sheriff,  §§  632-665. 
AFFIDAVIT  in  claim  and  delivery,  §  179. 
ALIAS  writ,  issuance  of,  §  673. 
AMENDED  SUMMONS,  service  of,  §  131. 
AMENDMENT, 

of  attachment  return,  §  225. 

of  execution,  §  348. 

of  sheriff's  certificate,  §  581. 
ANNUITY,  attachment  of,  §  321. 

APPEAL, 

costs  of,  on  redemption,  §  498. 

on  foreclosure,  bond  for,  §  533. 

when  releases  attachment,  §  278. 
APPOINTMENTS,  purchase  of,  §§  18,  19. 

of  under  sheriff,  §  57. 
ARREST  AND  BAIL,  §§  159-178. 

liability  of  sheriff,  §§  170-174. 

sheriff's  expenses,  §§  166,  167. 
ARREST, 

generally,  §§  690-730. 

breaking  doors  to  make,  §§  697-699. 

by  telegraph,  §  717. 

carrying  concealed  weapons,  §  730. 

duty  to  arrest  offenders,  §  690. 


570 


INDEX. 


ARREST  (Continued). 

duty  on  arrest  of  insane,  §  715. 

electors  privileged  from,  §  718. 

exemption  of  legislators  from,  §  719. 

exemption  of  witnesses  from,  §  721. 

exemptions,  §§  147,  162.  718-720. 

for  contempt  of  court,  §§  151,  716. 

for  fraud,  §§  160,  '/22. 

how  arrest  is  made,  §§  696-699. 

how  executed  in  another  county,  §  706. 

in  civil  actions,  §§  159-178,  714,  1^^- 

in  disorderly  houses,  §  729. 

in  nightime,   §§  702-704. 

jurisdiction  of  offenses,  §  713. 

justifiable  homicide  in  making.  §  728. 

liability  for  delay  in,  §  709. 

making  arrests  without  authority,  §  726. 

militia  exemptions  from,  §  720. 

name  of  defendant  in  warrant,  §  705. 

nighttime  defined,   §  704. 

of  fugitive  from  justice,  §  744. 

of  insane  persons,  §  715. 

of  witnesses,  §§  147-151,  162. 

offense  triable  in  another  county,  §  711. 

officer  may  summon  aid,  §  694. 

prisoners  brought  from  other  counties,  §  723. 

proceedings  before  magistrate,  §  710. 

refusing  to  aid  officers,  §  695. 

refusing  to  arrest,  §  727. 

rescuing  prisoners,  §  707. 

retaking  after  escape,  §  712. 

rights  of  officers  to  seizure,  §  691. 

service  of  warrant,  §§  693-706,  725. 

taking  prisoner  before  magistrate,  §  708. 

taking  weapons  from  prisoners,  §  701. 

use  of  unnecessary  force,  §  700. 

when  cannot  be  made  at  night,  §  703. 

when  doors  may  be  broken,  §  699. 

when  force  may  be  used,  §  698. 

when  homicide  justifiable,  §  728. 


INDEX.  571 


ARREST  (Continued). 

when  may  be  made  at  night,  §  702. 

when  prisoner  may  not  be  handcuffed,  §  724. 

when  warrant  must  be  shown,  §  693. 

who  is  not  a  traveler,  §  730. 

without  warrant,  §  692. 
ASSAULT  by  officers,  §  55. 
ASSISTANCE,  writ  of,  §§  666-674. 

against  whom  will  issue,  §  668. 

ahas  writ,  §  673. 

false  return,  §  674. 

object  of  the  writ,  §  666. 

plaintiff  entitled  to  immediate  service,  §  667. 

when  writ  may  issue,  §  670. 

when  writ  will  be  refused,  §  669. 

where  tenants  in  common,  §  671. 

who  not  to  be  removed,  §  672. 
ATTACHMENT, 

generally,  §§  201-228. 

by  garnishment,  §§  300-322. 

claim  by  third  party,  §  235a. 

conducting  business  under,  §§  246-248. 

conflict  of  writs,  §  221. 

contents  of  writ,  §  204. 

custody  of  property,  §§  238-241. 

custody  of  writ,  §  206. 

death  of  defendant,  §  277. 

deposit  to  release,  §  274. 

excessive  levy,  §  245. 

excluding  owner  from  premises,  §  262. 

growing  crops,  §§  290-292. 

holiday  on,  §  213. 

instructions  to  officer,  §  207. 

inventory  of  property,  §  223. 

irregularity  of,  §§  203,  209. 

justice's  court  attachment,  §  205. 

leviable  property,  §§216,  217. 

levy  upon  fixtures,  §  630. 

lien,  how  enforced,  §  219. 


572  INDEX. 

ATTACHMENT   (Continued), 
lien  in  replevin,  §  199. 
moneys  in  custody  of  law,  §  218. 
new  summons,  §  220. 

of  exempt  wages  an  abuse  of  process,  §  315. 
of  mortgaged  personal  property,  §§  283-289. 
of  partnership  property,  §  250. 
of  personal  property,   §§  230-299. 
of  pledged  property,  §§  293-297. 
of  real  property,  §§  323-331. 
of  valueless  property,  §  260. 
of  vessels,  §  231. 
priority  of  levies,  §  222. 
regularity  of  writ,  §§  203,  209. 
release  of,  §§269-279,  281,  331. 
release  by  appeal,  §  278. 
removal  of  property,  §  243. 
request  to  granishee,  §  301. 
responsibility  of  officer,  §  242. 
return  of  writ,  §  223. 
right  of  officer  to  indemnity,  §  235b. 
undertaking  for,  §  208. 
undertaking  for  release,  §§  271,  272. 
void  levy,  instances,  §  240. 
what  acts  justified,  §  236. 
what  property  leviable,  §j5  254,  260,  261,  267. 
where  debt  is  not  due,  §  210. 

ATTORNEY, 

sheriff  must  not  act  as,  §  46. 
sheriff  not  to  have  as  partner,  §  46. 
visits  to  prisoners,  §  780. 

BADGES  for  sheriff,  §  56. 
BAILIFF,  sheriff  to  act  as,  §  26. 
BENCH  WARRANT,  service  of,  §  725. 
BOARDING  of  prisoners,  expense,  §  'j']6. 

BOATS, 

attachment  of,  §  231. 


INDEX.  573 

BOATS   (Continued), 
execution  sale,  §  599. 
service  of  summons  against,  §  m. 

BOILERS  as  fixtures,  §  622. 

BOND, 

defects  in,  no  defense,  §  648. 

of  deputies,  §  14. 

of  ex  officio  officers,  §  9. 

official,  §  7. 

special  liability  on,  §  8. 

to  sheriff  on  claim  of  third  party,  §§  235a,  235b,  389. 

withdrawal  of  sureties,  §  78. 

BOND  OF  INDEMNITY, 

actions  upon,  §§  654-656,  658. 
liability  on,  §§  649,  656. 
on  restitution,  §  688. 

BONDSMEN   (see  "Sureties"). 

BREACH  of  duty,  generally,  §  53. 

BRIBERY  of  officer,  §  90. 

BUILDING  MATERIALS,  when  not  attachable,  §  267. 

BUILDINGS, 

as  fixtures,  §§  614,  615,  623,  624. 

as  personal  property,  §  233. 

certain  materials  not  attachable,  §  267. 

BURDEN  OF  PROOF  as  to  exemptions,  §  406. 

BUSINESS  under  attachment,  §§  246-248. 
right  of  officer  to  enter,  §  263. 

CARE  OF  JURY,  §  30. 

CATTLE  in  herds,  transfer  of,  §  615. 

CERTIFICATE  of  sale,  §§561,  579. 

CERTIFICATES,  issuance  of  false,  §  54. 

CHOSES  IN  ACTION,  execution  sale,  §  556. 

CITATIONS,  §§  157,  158. 

CITIZEN,  fees  for  service  of  process,  §  800. 


574  INDEX. 

CLABI, 

by  third  party,  attachment,  §  235a. 

by  third  party,  execution,  §  389. 

of  exemption,  how  made,  §§  426,  427. 

when  to  be  made,  §§  422-424. 
CLAIM  AND  DELIVERY,  §§  179-200. 
CLASSIFICATION  of  prisoners  in  jails,  §  766. 

CLOUD, 

on  title  by  execution  sale,  §  598. 

on  title  of  homestead,  §  439. 
COLLATERAL  attack  upon  execution  sale,  §  350. 
COMMISSIONER,  sale  by,  §i<  539-599- 

mortgage  to  be  released  by,  §  599. 
COMPENSATION  to  successor  in  certain  cases,  §  85. 
COMPUTATION  OF  TIME,  §  92. 
CONFINEMENT  of  prisoners,  §§  763.  767. 
CONFISCATION  of  fish  nets  unauthorized,  §91. 
CONFLICT  of  attachments,  §§221,  377,  378,  380. 
CONSOLIDATION  with  tax-collector,  §  12. 
CONSTABLES  (see,  also,  "Officer"). 

appointment  of  deputies,  §  97. 

duties  of,  §  96. 

fees  for  certain  arrests,  §  99. 

law  governing,  §  98. 
CONTEAIPT  OF  COURT,  arrest  for,  §§  151,  716. 
CONTENTS  OF  SAFE,  §  265. 

CONTRACTS,  officer  not  to  be  interested  in  certain,  §§  80,  83. 
CONVEYANCE,  effect  upon  redemption,  §471. 
CONVICTION  of  certain  offenses,  §  -j-j. 
CORONER, 

fees  for  sheriff's  duties,  §§  70,  799. 

when  to  execute  process,  §  68. 
CORPORATE  STOCK,  garnishment  of,  §§  310,  312. 
COPORATIONS, 

criminal  summons  against,  §  132. 

garnishment  of,  §  307. 

service  of  summons  upon,  §§  106-108. 


INDEX.  575 

COSTS  of  appeal  in  redemption,  §  498. 
COUNSEL,  to  visit  prisoners,  §  780. 
COUNTY  DEBTS,  inhabitants  not  liable,  §  381. 

COUNTY  JAIL, 

generally,  §§  763-787. 

by  whom  kept  and  for  what  used,  §  763. 

carrying  articles  to  prisoners,  §  786. 

credits  allowable  to  prisoners,  §  784. 

escapes,  §§  782,  783.  ^ 

expense  of  boarding  prisoners,  §  776. 

guard  for  jail,  §  TJZ. 

inhumanity  to  prisoners,  §  785. 

injuring  jails,  §  787. 

photographing  prisoners,  §  679a. 

prisoner  entitled  to  visits  of  counsel,  §  780. 

prisoners  must  be  confined,  §  767. 

prisoners  on  civil  process,  §  775. 

prisoners  to  be  classified,  §  766. 

rescuing  prisoners,  §  781. 

rooms  required  by  law,  §  764. 

searching  of  cells,  §  765. 

service  of  papers  on  prisoners,  §  772. 

United  States  prisoners,  §  768. 

unsafe  jail,  §§  769-771. 

whom  sheriff  must  receive,  •§§  774,  779. 

working  of  prisoners,  §§  'j'j'j,  778. 
COURT  BAILIFF,  sheriff  to  act,  §  26. 
COURT-MARTIAL,  process  of,  §  35. 
COURTROOMS,  when  sheriff  to  provide,  §  38. 
CREDITS  allowable  to  prisoners,  §  784. 

CRIMINAL  SUBPCENA, 
issuance,  §  152. 
service,  §  153. 

CRIMINAL  SUAIMONS  against  corporation,  §  132. 

CROPS,  attachment  of,  §§  290-292. 

CRUELTY  to  prisoners,  §  785. 

CURRENCY,  receivable  on  redemption,  §§  486,  487. 


576  INDEX. 

CUSTODY, 

of  prisoners  working,  §§  'j'/'j,  778. 
of  property  attached,  §§  238,  241. 

CUSTODY  01^^  LAW,  §  264. 

DAMAGES, 

against  ofificer,  measure  of,  §  641. 
for  detaining  property,  §  641. 
DEAD  BODIES,  disposition  of,  §  49. 

DEATH, 

of  defendant  in  attachment,  §  277. 

of  defendant  in  execution,  §  337. 

of  party,  issuance  of  execution,  §  337. 
"DEBTS"  on  garnishment,  defined,  §  306. 
DEED  OF  SHERIFF, 

generally,  §§  501-512. 

execution  by  deputy,  §  512. 

how  meaning  ascertained,  §  508. 

is  evidence  against  whom,  §§  507,  509. 

mandamus  to  obtain,  §  511. 

recitals  necessary  in,  §  504. 

what  conveyed  by,  §  503. 

when  due,  §  501. 

when  premature,  void,  §  510. 

when  takes  effect,  §  502. 
DEFECTIVE  bond,  effect  of,  §  648. 
DELAY, 

in  execution  of  writs,  §§  31,  32,  loi,  114,  115,  234,  235,  342. 

liability  for,  §§32,  64,  235. 

of  examination  of  prisoner,  §  709. 
DEMAND,  when  necessary,  §§  636,  637. 
DEPOSIT  to  release  attachment,  §  274. 
DEPUTY, 

appointment,  J;  13. 

buying  appointment,  §§  18,  19. 

conflicting  levies,  §  665. 

constables,  appointment,  §  97. 


INDEX.  577 

DEPUTY  (Continued). 

execution  of  sheriff's  deed,  §  512. 

for  new  courts,  §  16. 

liability  for  acts  of,  §§  17,  651. 

oath  and  bond,  §  14. 

powers  and  duties,  §  15. 

qualifications,  §  13. 

recovery  of  reward,  §  751. 

salary  of,  §§  789,  790. 

under  sheriff,  §  56. 
DESCRIPTION  of  property  in  replevin,  §  196. 
DIRECTIONS  to  be  in  writing,  §  58. 
DISCHARGE  in  arrest  and  bail,  §§  168,  178. 
DISOBEDIENCE  of  void  order,  §  549. 
DIVISION  of  county,  salaries,  §  803. 
DOORS,  breaking  of,  to  make  arrest,  §  699. 
DUELS,  prevention  of,  §  yj. 
DURESS  of  goods,  liability  for,  §  639. 
DUTIES, 

as  to  wrecks,  §  36. 

at  common  law,  §  2. 

breach  or  omission,  §  53. 

care  of  jury,  §§  29,  30. 

of  constables,  §  96. 

of  deputies,  §  15. 

of  sheriff,  generally,  §§3,  23. 

specially  conferred,  §  33. 

EARNINGS  of  debtor,  exemptions,  §§  404,  418,  419. 

EJECTMENT,  who  bound  by  judgment.  §  678. 

ELECTION  of  sheriff,  time,  §  5. 

ELECTORS,  exemption  from  arrest,  §§  162,  718. 

ELIGIBILITY  to  sheriff's  office,  §  4. 

ELISORS, 

fees,  §§  70,  799. 

when  to  act.  §  69. 
EMBEZZLEMENT  by  sheriff',  §  51. 


578  INDEX. 

ENGINES  as  fixtures,  §  622. 

EQUITABLE  claim,  not  subject  to  execution,  §  383. 

ERASURES  in  return,  §  129. 

ERRONEOUS  suspension,  salary,  §  804. 

ERROR  in  writ  of  restitution,  §  689. 

ESCAPE, 

civil  liability  of  sheriff,  §§  171-173. 

computation  of  term,  §  783. 

from  jail,  §§  171-173,  712. 

penalty  for,  §  782. 

retaking  of  prisoner,  §  712. 

ESTATE  FUNDS,  garnishment  of,  §  309. 

ESTATE  of  decedent,  redemptions,  §  482. 

ESTOPPEL, 

in  sherift'"s  deed,  §  506. 

of  owner  of  property,  §  401. 

protecting  sheriff,  §  657. 

EVASION  of  process,  restitution,  §  682. 

EXAMINATION, 

of  debtor  on  garnishment,  §  303. 

of  prisoner,  §  708. 
EXCESSIVE  levy  in  attachment,  §  245. 
EXCLUDING  owner  from  premises,  §  262. 
EXECUTION, 

generally,  §§  332-371. 

against  pledged  property,  §  380. 

amendment  of,  §  348. 

arrest  and  bail,  §§  166-168. 

before  entry  of  judgment,  §  338. 

cannot  be  received  on  Sunday,  §  340. 

certificate  of  sale,  §§  561,  579. 

claim  by  third  party,  §  389. 

contents  of  writ,  §  341. 

delay  in  service,  §  342. 

earnings  of  debtor,  §§  404,  418,  419. 

exemptions,  §§  403-467. 

from  justices'  courts,  §§  366,  370. 


INDEX.  579 


EXECUTION   (Continued). 

gift  from  husband  to  wife,  §  385. 

harvested  grain  crop,  §  392.  ! 

how  executed,  generally,  §  356. 

in  foreclosure,  issuance,  §  334. 

irregularities  in,  §  345,  349. 

levy  upon  corporation  stock,  §  307.  .  • 

levy  upon  fixtures,  §  630. 

levy  upon  homestead,   §§433,  438-440. 

levy  upon  judgment,   §  ^iJl- 

levy  upon  personal  property,  §§  372,  394. 

levy  upon  real  property,  §§  395-402. 

nature  of,  §  421. 

notice  of  sale  of  real  property,  §  563. 

partnership  creditors,  §§  390,  391. 

personal  property,  §§  372,  394. 

quashing  of,  §  355. 

real  property,  §§  395-402. 

recall  of,  §  335. 

receipt  of  writ,  §§  339,  340. 

release  of,  §  394. 

relief  from  sale,  §§  591-594. 

resale  of  property,  §§  524,  544,  583. 

return  of,  §§  358,  363. 

sale  after  return  day,  §  542. 

sale,  application  of  proceeds  of,  §§  547-552. 

sale,  how  conducted,  §  540. 

sale  of  choses  in  action,  §  556. 

sale  of  franchise,   §§  520,  521. 

sale  of  mortgaged  property,  §§  517,  525,  526. 

sale  of  personal  right,  §  386. 

sale  of  vessels,  §  559. 

sale,  payments,  §  546. 

sale,  possession  and  title.  §  499. 

sale,  postponement,  §  543. 

sale,  title  of  purchaser,  §§  545,  580,  585-587. 

sale  without  notice,  §  565. 

setting  aside  justice's  court  execution,  §  370. 

stay  of,  §§  353,  371. 


580  INDEX. 

EXECUTION  (Continued). 

upon  grain  crop,  §  392. 

void  and  voidable  writs,  §§  344-347. 

what  subject  to,  §§  332,  339,  356,  357. 

when  may  issue,  §§  333,  334,  336- 
EXEMPTIONS, 

burden  of  proof,  §  406. 

claim,  when  to  be  made,  §§  422-428. 

construction  of  statutes,  §  405. 

exempt  property  may  not  be  attached,  §  407. 

from  arrest,  §§  147,  162,  718-720. 

from  execution,  §^  403-467. 

grain  on  homestead  land,  §  430. 

homestead,  §§  429,  433,  434,  436-439- 

how  claim  made,  §§  426-428. 

interest  in  common,  §  421. 

joint  claim,  effect,  §  428. 

joint  ownership,  §§431,  442- 

nature  of,  §  421. 

of  laborer,  §§  411,  412. 

salaries  of  officers,  §§  418,  464. 

stallion,  §  413. 

teamster,  §^  409,  410,  412. 

time  of  claim,  §§  422-428. 

tools,  etc.,  §  414. 

waiver  of,  §  419. 
EXPENSES, 

arrest  and  bail,  §§  166,  167. 

boarding  prisoners,  §  776. 

conveying  insane,  §  805. 

conveying  prisoners,  §  805. 

extradition,  §  745. 

keeping  property  levied  upon,  §§  252,  280-282,  374. 

of  publication,  prepayment,  §  794. 

pursuit  of  criminals,  §§  807,  808. 
EXPIRATION  of  term,  §§  84-86. 
EXTRADITION, 

no  fees  upon,  §  747. 

of  criminals,  §§  740,  747. 


INDEX.  581 


FALSIFICATION  of  accounts,  §  51. 
FARMING  ON  shares,  §  291. 
FEE  BOOK  to  be  kept,  §  793. 
FEES  AND  SALARIES, 

generally,  §§  788-814. 

bills  against  county,  §§811-813. 

book  to  be  kept,  §  793. 

certain  arrests  by  constables,  §  99. 

conveying  prisoners  and  insane,  §  805. 

expenses  in  pursuit  of  criminals,  §  807. 

increase  of  compensation,  §  809. 

lien  of  officer,  §§  249,  281,  282,  797,  798. 

mileage,  how  computed,  §  795. 

no  fees  for  unsuccessful  pursuit,  §  808. 

none  on  extradition,  §  747. 

none  on  habeas  corpus,  §§  739,  814. 

of  citizen  for  service,  §  800. 

of  coroner,  §§  70,  799. 

of  deputies,  §  789.  ■ 

of  elisor,  §§  70,  799. 

penalty  for  receiving  illegal,  §  801. 

prepayment  required,  §§  791,  794. 

receipt  to  be  given,  §  792. 

salary  during  suspension,  §  804. 

salaries  of  constables,  §  810. 

salvage  fees,  §  806. 

settlement  with  treasurer,  §  802. 

sherifif's  keeper,  §  796. 

to  be  paid  before  release,  §§  281,  282. 
FIRE,  removal  of  prisoners,  §  770. 
FISH    NETS,  confiscation  unauthorized,  §  91. 
FIXTURES, 

generally,  §§617-631. 

buildings,  question  of  fact,  §§  623,  624. 

construction  of  statutes,  §  618. 

engines,  boilers,  machinery,  §  622. 

general  rule  in  California,  §  619. 

how  to  levy  on,  §  630. 


582  INDEX. 

I'lXTURES   (Continued). 

intention  to  govern,  generally,  §  620. 

leading  case  quoted,  §  631. 

mortgage  of  lessee,  §  627. 

omission  in  lease,  §  625. 

on  public  lands,  §  628. 

renewal  of  lease,  §  626. 
FOOD  and  lodging  for  jurors,  §  50. 
FORCE,  use  of  in  making  arrest,  §  698. 
FORCIBLE  entry  and  detainer,  §§  685,  686. 

service  of  summons  in,  §  112. 
FORECLOSURE, 

generally,  §§517,  525-539. 

against  insolvent,  §  364. 

issuance  of  second  order,  §  530. 

no  levy  necessary,  §  526. 

order  of  sale,  when  may  issue,  §  334. 

partner's  interest,  §  536. 

redemption,  §  537. 

removal  of  improvements,  §  535. 

return  of  sale,  §§  363,  528,  529. 

sale  by  commissioner,  §  599. 

stay  by  appeal,  §  533. 

title  of  purchaser,  §  534. 

FORM, 

of  judgment  in  replevin,  §§  193-195. 

of  return  of  summons,  §§  1 19-125. 
FORMS  FOR  SHERIFF'S  USE,  chap.  XXXII. 
FRANCHISE, 

execution  sale,  §  387. 

redemption  of,  §  483. 

FRAUD  in  service  of  summons,  §  117. 

FRAUDULENT  TRANSFERS, 
generally,  §  601. 

cattle,  hogs,  etc.,  on  ranch,  §  615. 
change  of  possession  a  question  of  fact,  §  605. 
code  provisions,  §  602. 
nature  of  the  transfer  required,  §  604. 


INDEX.  583 

FRAUDULENT  TRANSFERS  (Continued). 

personal  property  on  lands  conveyed,  §  614. 

property  in  hands  of  third  party,  §  610. 

remedy  of  the  creditor,  §  606. 

resumption  of  possession,  §  607. 

sale  of  property  in  vendee's  possession,  §  609. 

subsequent  employment  of  vendor,  §  608. 

transfer  of  cumbrous  personal  property,  §  611. 

transfer  of  lodging-house  furniture,  §  612. 

transfer  of  undivided  interest,  §  613. 
FUGITIVES  from  justice,  §§  740-747- 

GAMBLERS,  prosecution  of,  §  45. 
GARNISHEE,  collection  from,  §305. 

generally,  §§  300-322. 

inventory,  §  301. 

liability  of  garnishee,  §  303. 

limit  of  examination,  §  303. 

moneys  in  sheriff's  hands,  f  304. 

nature  of,  §  300. 

of  annuity,  §  321, 

of  common  carrier,  §  319. 

of  corporation,  §  307. 

of  corporate  stock,  §  310,  312. 

of  estate  funds,  §  309. 

of  exempt  wages  an  abuse  of  process,  §  315- 

of  growing  crops,  §  317. 

of  lessee's  interest,  §  314. 

of  mortgage,  §311. 

of  owner  of  safe  deposit  vault,  §  318. 

of  pledged  property,  §  322. 

of  property  in  custody  of  law,  §  304. 

of  warehouseman,  §  320. 

offset  allowable,  §  308. 

penalty  for  failure  to  answer,  §  302. 

what  is  not  a  good  service,  §  316. 

GIFT  from  husband  to  wife,  §  385. 
GOODS,  retaking  from  officer,  §  89. 


584  INDEX. 

i 

GRAIN, 

crop,  levy  of  execution,  §  392. 

on  homestead  land,  exemption,  §  430. 

GROWING  CROPS,  attachment  of,  §  317. 
GUARD  for  jail,  §  773. 

HABEAS  CORPUS, 

generally,  §§  731-739- 

no  fees  allowable  in,  §  739.     • 

prisoner  held  by  United  States  court,  §  736. 

proof  of  service,  §  735. 

receipt  of  writ,  §  731. 

return  of  writ,  §  734. 

service,  generally,  §§  732,  733,  738. 

service  on  holidays,  §  738. 

warrant  may  issue,  §  737. 

HANDCUFFS,  when  not  to  be  used,  §  724. 

HOLIDAYS, 

attachment  writ,  §  213. 
in  California,  enumerated,  §  94. 
performance  next  day,  §  93. 
receipt  of  writ,  §  348. 
Saturday  half -holiday,  §  21. 
service  of  habeas  corpus,  §  738. 

HOMESTEAD, 

effect  of  judgment,  §§435-437- 

exemption,  §§  429,  430,  433,  434,  436-439- 

grain  on,  §  430. 

injunction  against  sale,  §  440. 

levy  of  execution,  §§433,  438-440. 

levy  upon,  §  433. 

priority  over  mortgage,  §  429. 

use  as  hotel,  §  432. 

HOMICIDE  by  officer,  when  justifiable,  §§  88,  728. 

HOTEL,  use  of  homestead  for,  §  432. 

HUSBAND,  gift  to  wife,  §  385. 


INDEX.  585 

"IDEM  SONANS,"  return  of  summons,  §  122. 
ILLEGAL  FEES,  penalty  for  receiving,  §801. 
ILLEGAL  LEVY,  liability  of  officer,  §  635. 
IMPLEMENTS  OF  TRADE,  exemption  of,  §§  408-414. 
IMPROVEMENTS,  removal  of,  §  535. 
IN  CUSTODY  of  the  law,  §  264. 
INDEMNITY  BOND, 

actions  upon,  §§  654-658. 

in  claim  and  delivery,  §  191. 

on  claim  by  third  party,  §§  235a,  389,  426,  427. 

on  restitution,  §  688. 

to  sheriff,  235,  640-649. 
INHUMANITY  to  prisoners,  §  785. 
INJUNCTION,  §§  2ooa-2O0d. 

against  sale  of  homestead,  §  440. 

against  void  judgment,  §  368. 

by  whom  served,  §  200b. 

how  served,  §  200a. 

return  of  execution,  §  361. 

when  served,  §  200a. 
INJURIES  to  jails,  §  787. 

INNOCENT  purchaser  at  execution  sale,  §  590. 
INSANE  PERSONS, 

arrest  of,  §  715. 

expense  of  conveying,  §  805. 

service  of  summons  on,  §  106. 
INSPECTION  of  sheriff's  records,  §  22. 
INSTRUCTIONS  to  sheriff,  §  207. 
INSURANCE  on  homestead,  exemption,  §  434. 
INTEREST,  computation  of,  §  554. 
INTRUDERS  on  state  lands,  removal,  §  -^y. 
INVENTORY, 

of  attached  property,  §§  223,  301. 

of  property  under  execution,  §  375. 
IRREGULARITIES  in  executions,  §§  345,  349. 
ISSUANCE  of  attachment,  when  void,  §  202. 


586  INDEX. 

JAIL, 

county,  generally,  |§  763-787. 
escapes  from,  §  782. 
guard  for,  §  773. 
injuries  to,  §  787. 

JOINDER  of  sureties  in  suit  against  officer,  §  645. 

JOINT    PROPERTY,  levy  of  execution,  §§  390-393- 

JUDGMENT, 

effect  on  homestead,  §§  435-437- 
execution  before  entry,  §  338. 
in  claim  and  delivery,  §§  193-195- 
in  ejectment,  binds  whom,  §  678. 
interest  on,  §  554. 
levy  of  execution  upon,  §  377. 
lien  in  redemption,  §  497. 
set  aside  after  levy,  §  352. 
set  off  on  execution,  §  644. 

JURISDICTION, 

indemnity  bond,  §  658. 
of  offenses,  §  713. 

JURORS, 

care  of- jury,  §  30. 

food  and  lodgings  for,  §  50. 

misconduct  of,  §  29. 

summons  sent  by  mail  not  good  service,  §  28. 

JUSTICE'S  COURT, 

attachment,  §  205. 

execution,  §§  366-371. 

setting  aside  execution,  §  370. 

summons  from,  §  133. 

transcript,  execution  on,  §  336. 
JUSTIFIABLE   HOMICIDE,  by  officer,  §  728. 


KEEPER, 

fees  and  expenses,  §§  252,  796. 
in  attachment,  suggestions,  §  251. 


INDEX.  587 

LABORER,  exemptions  from  sale,  §§  404,  410-412. 
LARCENY  of  records,  §  52. 
LEASE,  fixtures  on  property,  §§  625-627. 
LEASED    PROPERTY,  garnishment,  §  314. 
LEASEPIOLD    INTEREST,  execution  sale,  §  578. 
LEGAL    HOLIDAYS,  enumerated,  §  94. 
LEGISLATORS,  exemption  from  arrest,  §  719. 
LEVY, 

by  officer  and  by  deputy,  §  665. 

none  on  foreclosure,  §  526. 

of  attachment,  excessive,  §  245. 

of  attachment  void,  §  240. 

of  execution,  death  of  defendant,  §  237- 

of  execution,  generally,  §§  356-359. 

of  process,  liability  for  refusal,  §  65. 

on  valueless  property,  §  260. 

upon  mortgaged  personal  property,  §  642. 

when  illegal,  §  635. 
LIABILITY, 

for  delay  in  service,  §  32. 

for  delay  of  examination,  §  709. 

for  deputies'  acts,  §§17,  661. 

for  failure  to  release,  §  279. 

for  levy  on  mortgaged  property,  §  288. 

for  refusal  to  levy,  §  66. 

for  trespass,  §  640. 

for  wrongful  sale,  §  562. 

in  arrest  and  bail,  §§  170-173,  177. 

of  officer,  exempt  property,  §  425. 

of  sureties,  §  646. 

on  indemnity  bond,  §  651. 
LIEN, 

dependent  on  possession,  §  249. 

for  cutting  timber,  §  297. 

foreclosure  against  insolvent,  §  364. 

of  officer  for  fees,  §§  249,  797. 

upon  personal  property,  attachment,  §§  293-297. 

upon  personal  property,  waiver,  §  298. 


588  INDEX. 

LIMITATION   OF   ACTIONS, 

against  sheriffs,  §§  632-634. 

against  sureties,  §  633. 
LIS    PENDENS,  when  not  applicable,  §  681. 
LOSS  of  property  replcvined,  §  198. 
LOTTERY   TICKETS,  search  warrant  for,  §  760. 

MACHINERY,  as  fixtures,  §  622. 
MAGISTRATE,  proceedings  before,  §  708-710. 
MAIL    SERVICE  on  jurors  not  good,  §  28. 

MANDAMUS, 

to  obtain  sheriff's  deed,  §  511. 

writ  of  restitution,  §  685. 
MEASURE   OF   DAMAGES  against  officer,  §  641. 
MILEAGE, 

for  unsuccessful  pursuit,  §  808. 

how  computed,  §  795. 
MILITIA,  exemption  from  arrest,  §  719. 
MINING  claim,  liable  to  execution,  §  400. 
MINORS,  service  of  summons  upon,  §§  106,  109. 
MISCONDUCT   OF  JURORS,  §  29. 
MONEYS, 

failure  to  pay  over,  §§  51,  66,  659. 

money  deposited  to  release  levy,  §  274. 

payment  to  treasurer,  §  48. 
MORTGAGE, 

foreclosure  against  insolvent,  §  364. 

garnishment  of,  §  311. 

of  lease,  effect  on  fixtures,  §  627. 

priority  of  homestead,  §  429. 
MORTGAGED   PROPERTY, 

attachment,  §§  283-289,  290. 

execution  sale,  §§  388,  517,  525,  539,  558,  600. 

levy  upon,  §  642. 
MOTION,  remedy  against  sheriff,  §  660. 
MUTILATION  of  records,  §  52. 


INDEX.  589 


NEGLECT, 

to  levy  execution,  §  343. 

to  pay  over  moneys,  §§  51,  66,  659.     . 

NIGHTTIME, 
defined,  §  704. 
arrest  during,  §§  702-704. 

NOTICE, 

defined,  §  24. 

of  pendency  of  action,  §  681. 
of  suit  to  sureties,  §  647. 
preferred  labor  claim,  §  228. 
sale  of  personal  property,  §  376. 

OATH   OF   OFFICE, 
generally,   §  6. 
of  deputies,  §  14. 
power  to  administer,  §  47. 

OCCUPANCY,  writ  of  restitution,  §  687. 

OFFENSES,  prevention  of,  §  40. 

OFFICE, 

where  to  be  kept,  §  20. 

wrongful  assumption  of,  §§  10,  11. 

OFFICE   HOURS  of  sherifif,  §  20. 

OFFICER  (see  also  "Sheriff"), 

assault  by,  §  55. 

exemption  of  salary,  §§315,  404.  4^4- 

joinder  of  sureties  in  suit,  §  645. 

liable  on  sale  of  exempt  property,  §  425. 

liability  for  deputy,  §  661. 

liability  for  detaining  witness,  §  149. 

liability  for  trespass,  §  640. 

lien  for  fees,  §§  797-798. 

limitation  of  actions  against,   §  632-634. 

mandamus  against,  §  685. 

measure  of  damages  against,  §  641. 

refusal  to  aid,  §  695. 

refusal  to  arrest,  §  727. 


^90  INDEX. 

OFFICER  ( Continued ) . 

refusal  to  receive  criminal,  §  779. 

release  by  stipulation,  §  663. 

remedy  against  by  motion,  §  660. 

right  to  enter  business  premises,  §  263. 

unauthorized  arrest,  §  726. 

when  not  responsible,  §  662. 
OFFICIAL  BOND,  §  7. 
OFFSET  on  garnishment,  §  308. 
OMISSION   OF   DUTY,  generally,  §  53- 
ORDER  OF  SALE, 

in  foreclosure,  §§  527,  530-531- 

when  may  issue,  §  334. 
ORIGIN  of  the  sheriff's  office.  §  i. 

PAROL  EVIDENCE  as  to  sheriff's  sale,  §  505. 
PARTNER'S    INTEREST,  foreclosure  upon,  §  536. 

PARTNERSHIP, 

attachment  of  property,  §  250. 

execution  against  property,  §§  390-393. 

priority  of  creditors,  §  391. 

service  of  summons  upon,  §  no. 
PARTNERSHIP  JUDGMENT,  redemption,  §  536. 
PATENT   RIGHT,  execution  sale,  §  386. 

PAYMENTS, 

at  execution  sale,  §§  546,  547>  549-  55 1.  552- 
under  protest,  redemption,  §  489. 

PENALTY, 

for  delay  in  service,  §  32. 

for  non-return  of  process,  §  64. 

for  refusal  to  levy,  §  343. 
PERFORMANCE  of  act  falling  on  holiday,  §  93. 
PERISHABLE   PROPERTY,  sale  of,  §  299. 
PERSONAL   PROPERTY, 

attachment  of,  §§  230-299. 

mortgaged,  levy  upon,  §  642. 

void  transfers,  §§601-616. 


INDEX.  591 

PESTILENCE,  removal  of  prisoners,  §  771. 

PHOTOGRAPHING  PRISONER,  §  679a. 

PLEADINGS  in  suits  against  officer,  §§  38,  645,  654. 

PLEDGED    PROPERTY, 
attachment  of,  §§  293-297. 
levy  of  execution,  §  380. 

PONDEROUS    ARTICLES,  §  244. 

POSSE   COMITATUS,  §§  23,  25,  42,  694. 

POSSESSION, 

of  personalty,  change  of,  §§601-616. 
pending  redemption,  §§490,  499,  538. 

POSTING  on  real  estate,  §  327. 
POSTPONEMENT  of  execution  sale,  §  543. 
POWER   OF    THE   COUNTY  (see  "Posse,"  etc.). 
POWERS  of  deputies,  §  15. 
PREFERRED   CLAIMS  in  attachment,  §  227. 
PRELIMINARY   EXAMINATION  of  prisoner,  §  708. 
PREMATURE  sheriff's  deed,  void,  §  510. 
PREPAYMENT  of  fees  required,  §  791. 
PREVENTION, 

of  duels,  §  41. 

of  offenses,  §  40. 
PRIOR   LIENS,  payment  on  redemption,  §  480. 
PRIORITY, 

of  attachments,  §§  221,  222. 

of  partnership  creditors,  §  391. 

PRISONERS, 

carrying  articles  to,  §  786. 
classification  of,  §  766. 
confinement  of,  §  767. 
counsel  to  visit,  §  780. 
credits  allowable,  §  784. 
examination  of,  §  708. 
expense  of  boarding,  §  776. 
expense  of  conveying,  §  783. 
inhumanity  to,  §  785. 


592 


INDEX. 


PRISONERS  (Continued). 

on  civil  process,  §  775. 

photographing  prisoners,  §  679a. 

production  as  witnesses,  §§  143,  154,  723. 

removal  from  jail,  §§  770,  77 1- 

rescue  of,  §§  707,  781. 

service  of  papers  upon,  §  772. 

taking  weapons  from,  §  701. 

when  not  to  be  handcuffed,  §  724. 

working  of,  §§  yi-J,  778. 
PROCEEDINGS  on  execution,  §  357. 
PROCEEDS  of  executor's  sale,  §§  547-552- 
PROCESS, 

defined,  §  24. 

delay  in  execution  of,  §§  31,32,  loi,  114,  115,234,235,552. 

liability  for  failure  to  return,  §  64. 

liability  for  refusal  to  levy,  §  65. 

of  court  martial,  §  35. 

regularity  of,  §§  59,  203,  344,  345. 

resistance  to,  §  25. 

return  to  another  county,  §  62. 

service  upon  sheriff,  §  61. 

when  executed  by  coroner,  §  68. 

when  execution  is  justified,  §  59. 

when  to  be  exhibited,  §  60. 
PROMISSORY   NOTE,  levy  of  execution,  §  378. 
PROPERTY, 

attachable,  §§  254-268. 

in  custody  of  law,  §  264. 

in  receiver's  hands,  §  268. 
PROVISIONS,  exemption  of,  §  417. 
PUBLICATION,  prepayment  of  expenses,  §  794. 
PUBLIC    LANDS,  buildings  as  fixtures,  §  628. 
PURCHASE  at  certain  sales  prohibited,  §§  81,  83. 
PURSUIT  of  criminals,  expense  of,  §§  807,  808. 

QUALIFICATION,  sureties  in  bond,  §  7. 
QUASHING  of  execution,  §  355. 


INDEX.  593 

RACE   HORSE,  loss  of,  §  266. 

REAL   PROPERTY, 
attachment  of,  §  331. 
certificate  of  sale,  §§  561,  579. 
notice  of  execution  sale,  §§  563-565, 
redemption  of,  §§468-500. 
sale  en  masse,  §  573. 
sale  on  execution,  §§  513-600. 
subject  to  execution,  §§  395-400. 

RECALL  of  execution,  §  335. 

RECEIPT  for  fees  to  be  given,  §  792. 

RECEIVER,  attachment  of  property  in  hands  of,  §  268. 

RECORDS, 

larceny  of,  §  52. 

to  be  open  to  inspection,  §  22. 

REDEMPTION  after  execution  sale, 
generally,  §§468-500. 
after  foreclosure,  §§470-472. 
by  whom  made,  §§  470-473. 
equitable  right,  §§  494-496. 
franchise,  §§  483-500. 
how  defeated,  §  488. 
land  of  decedent,  §  482. 
payment  of  judgment  lien,  §  497. 
possession  pending,  §  490. 
time  of,  §  474. 
when  allowed,  §  469. 

REDEMPTIONERS,  who  are,  §§  470-472. 

REFUSAL, 

of  officer  to  arrest,  §  727. 

to  aid  officer,  §  695. 

to  levy  execution,  §  343. 

to  pay  over  money,  §§  51,  66,  659. 
REGULARITY  of  process,  §§  59,  163,  203,  344,  345. 
RELEASE, 

of  attachment,  §§  269-281,  331. 

of  execution,  §  394.'/^ 


594  INDEX. 

RELEASE   (Continued). 

liability  for  failure  to,  §  279. 
money  deposited  to  release,  §  274. 
payment  of  fees,  §§281,  282,  798. 

RELIEF  from  execution  sale,  §§591,  592- 

REMOVAL, 

intruders  on  state  lands,  §  37. 
of  officer,  §§  74,  75. 
of  prisoners,  §§  770,  771. 
property  attached,  §  243. 

RENTS,  pending  redemption,  §§491-493. 

REPLEVIN, 

generally,  §§  179-200. 
from  sheriff,  §§  182-200. 
when  will  not  lie,  §  643. 

REQUISITION   FOR   FUGITIVES, 
arrest  for  extradition,  §  744. 
expense  of  extradition,  §  745. 
forms  for  application,  §  743. 
fugitives  from  justice,  generally,  §  740. 
no  fee  in  extradition,  §  747. 
proceedings  for  requistion,  §  742. 
requisites  for  obtaining  requisition,  §  746. 
when  extradition  may  be  had,  §  741. 

RESALE  of  real  property,  §§  544,  583. 

RESCUE  of  prisoners,  §§  707,  781. 

RESIDENCE  and  business  premises  in  attachment,  §  247. 

RESIDENCE  of  sherifif,  §  20. 

RESIGNATIONS,  to  whom  sent,  §  JZ- 

RESISTANCE, 

to  officers,  §  87. 

to  process,  §§  25,  42,  694. 
RESTITUTION,  writ  of,  §§  675-689. 

RETAKING, 

after  escape,  §  712. 

of  goods  from  officer,  §  89. 


INDEX.  ■  595 

RETURN, 

of  execution,  §§  358,  363. 

of  process,  generally,  §§  62,  64. 

of  sale  on  foreclosure.  §§  363,  523,  528,  529,  542. 

of  summons,  §§  1 19-126,  129,  130. 

on  attachment,  §§  223-226. 

on  habeas  corpus,  §§  734,  735. 

on  search  warrant,  §  757. 

REWARDS,  §§  748-753. 
RIOTS,  suppression  of,  §§42-44. 
ROOIMS,  required  in  jails,  §  764. 

SAFE,  and  contents  of,  §  265. 

SALARIES, 

division  of  county,  §  803. 

erroneous  suspension,  §  804. 

exemption  from  execution,  §§418,  419,  464. 

fees  and,  generally,  §§  788-814. 

no  increase  during  term,  §  809. 

of  certain  deputies,  §  16. 

settlement  before  drawing,  §  802. 

SALES,    SHERIFFS' 

after  claim  of  exemption,  §  425. 

amendment  of  certificate  of,  §  581. 

appeal — stay  of  proceedings,  §  533. 

application  of  proceeds,  §  547. 

certificate  of  sale,  §  579. 

clerical  errors  in  notice,  §  514. 

cloud  on  title,  §  598. 

computation  of  interest  on  judgment,  §  554. 

conflicting  process  from  different  courts,  §  548. 

conveyance  by  debtor  after  attachment,  §  588. 

death  of  defendant  after  levy,  §  553. 

debtor  may  direct  order  of  sale,  §  574. 

deed  by  successor,  §  596. 

deed  relates  back  to  attachment,  §  597. 

defective  notice  of  sale,  §  515. 

effect  of  return  without  sale,  §  523. 


596  INDEX. 

SALES,  SHERIFFS'    (Continued), 
franchise  may  be  sold,  §  521. 
good-will  of  business,  §  522. 
harmless  irregularity  in  decree,  §  518. 
how  sale  should  be  conducted,  §  540. 
irregularity  of  sale — remedy,  §  570. 
judgment  payable  in  money  only,  §  546. 
justice's  court  sale — transcript,  §  571. 
levy  not  necessary,  when,  §  526. 
liability  for  wrongful  sale,  §  562. 
mortgage  of  partner's  interest,  §  536. 
notice  of  sale,  §  563. 
official  advertising,  §  516. 
officer  not  to  purchase  at  sale,  §§  82,  83. 
of  perishable  property,  §§  299,  513. 
order  of  sale,  designation  by  judgment  debtor,  §  531. 
order  of  sale  unnecessary,  §  519. 
payment  of  proceeds  of,  §  551. 

payment  into  court — disobedience  of  void  order,  §  549. 
penalty  for  selling  without  notice,  §  541. 
postponement  of  sale,  §  543. 

power  under  foreclosure  to  sell  in  another  county,  §  517. 
preferred  claims  against  vessels,  §  560. 
proceeds  of  mortgaged  property,  §  558. 
prompt  return  after  sale,  §  528. 
purchaser  entitled  to  certificate,  §  561. 
purchaser  not  an  aggrieved  party,  §  566. 
purchaser's  title  dependent  upon  valid  unsatisfied  judg- 
ment, §  589. 
recovery  for  sale  without  notice,  §  567. 
recovery  from  bidder,  §  584. 
redemption  from,  §§  537,  582. 
relief  in  discretion  of  court,  §  592. 
reHef  of  purchaser — caveat  emptor,  §  591. 
removal  of  improvements,  §  535. 
resale,  §  524. 

resale  when  bidder  refuses  to  pay,  §§  544,  583. 
rights  of  innocent  purchasers,  §  590. 
rights  of  mortgagor,  §  538. 


INDEX.  597 

SALES,  SHERIFFS'  (Continued). 

sale  after  return  day,  §  542. 

sale  by  commissioner,  §  539. 

sale  in  mass  by  agreement,  §  573. 

sale  of  both  real  and  personal  property,  §  532. 

sale  of  leasehold  interest — when  absolute,  §  578. 

sale  of  toll-road,  §  557. 

sale  passes  interest  acquired  after  levy,  §  585. 

sale  to  be  made  in  parcels,  §  572. 

sale  without  notice,  §  565.  f, 

sales  of  choses  in  action,  §  556. 

sales  of  vessels,  §  559. 

sales  under  foreclosure,  §  525. 

sales  under  two  or  more  executions,  §  568. 

sales,  when  valid  and  when  void,  §  555. 

satisfaction  of  mortgage  by  sheriff  or  commissioner,  §  599. 

second  order  of  sale,  §  530. 

senior  and  junior  writs,  §  550. 

service  of  final  process  in  new  counties,  §  600. 

setting  aside  sale,  §§  569,  575. 

sheriff's  authority  to  make  sale,  §  527. 

sheriiT's  deed,  §  595. 

sheriffs'  sales  not  credit  sales,  §  577. 

surplus  to  be  returned  to  defendant,  §  552. 

title  conveyed  by  foreclosure  sale,  §  534. 

title  of  purchaser  not  dependent  on  sheriff's  return,  §  586. 
title  under  sheriff's  certificate,  §  580. 

title   when   attachment   irregular — intervening   purchaser, 
§  587- 

time  for  return  unlimited,  §  528. 

under  execution,  §§  514-600. 

under  foreclosure,  §§  514-600. 

unreasonable  delay  in  application  of  proceeds,  §  576. 

when  and  how  real  property  must  be  sold,  §  564. 

when  misrepresentation  was  used,  §  594. 

when  purchaser  cannot  recover,  §  593. 

when  sale  of  franchise  is  to  be  made,  §  520. 
SALVAGE,  sheriff  entitled  to,  §  806. 
SATURDAY  HALF-HOLIDAY,  §21. 
SCRIP,  etc.,  officer  not  to  deal  in,  §§  82,  83. 


598  ^N^E^- 

SEARCH  WARRANTS, 

any  peace  officer  may  serve,  §  762. 
by  whom  served,  §  756. 
disposition  of  property  taken,  §  761. 
generally,  §§  754-762- 
how  served,  §  755- 
lottery  tickets,  §  760. 
receipt  for  property  taken,  §  759- 
search  of  person,  §  761. 
service  by  day  or  night,  §  758. 
SEIZURE,  justification  of,  §  638. 

SERVICE, 

citation,  §  158. 
civil  subpoena,  §  140- 
criminal  subpoena,  §  I53- 
fees  of  citizen  for,  §  800. 
habeas  corpus,  §§  732,  733. 
injunction,  §  200a. 
papers  upon  prisoners,  §  772. 
search  warrant,  §§755,  756,  758. 
summons,  unauthorized,  §  I35- 
to  be  made  promptly,  §  31. 
upon  sheriff,  how  made,  §  61. 
writ  by  telegraph,  §  67. 
SET-OFF  of  judgments,  §  644. 
SHERIFF  (see  also  "Officer"). 
SHERIFF'S  DEED,  §§  501-512. 

execution  by  deputy,  §  512. 

how  meaning  ascertained,  §  508. 

is  evidence  against  whom,  §§  507,  509. 

mandamus  to  obtain,  §  S^i- 

recitals  necessary  in,  §  504. 

what  conveyed  by,  §  503. 

when  due,  §  501. 

when  premature,  void,  §  510. 

when  takes  effect,  §  502. 
SHERIFF'S  JURY,  §§  28-30. 
STALLION,  when  exempt,  §  41 3- 


INDEX.  599 

STATE  LANDS,  removal  of  intruders,  §  37. 

STAY  OF  EXECUTION,  §§  353,  354,  362. 
on  appeal  in  foreclosure,  §  533. 

STIPULATION  for  release  of  officer,  §  663. 

STOCK  OF  CORPORATION,  levy  of  execution,  §§  310,  312. 

SUBPCENA, 

generally,  §  136. 
civil,  §§  137-151- 
criminal,  §§  152-158. 

SUCCESSOR,  compensation  in  certain  cases,  §  85. 
SUITS  AGAINST  SHERIFFS,  §§  633-665. 

actions  upon  indemnity  bonds,  §  654. 

agreement  to  indemnify  sheriff,  §  650. 

alteration  of  bond,  §  652. 

an  estoppel  that  protects  the  sheriff,  §  657. 

bond  for  unlawful  act,  §  649. 

conditions  of  indemnity  bond,  §  653. 

defect  in  sheriff's  bond  no  defense,  §  648. 

duress  of  goods,  §  639. 

illegal  levy,  §  635. 

indemnity  bond — jurisdiction  of  courts,  §  658. 

judgment  against  sheriff,  §  656. 

liability  for  acts  of  deputy,  §  661. 

liability  of  officer  and  sureties  for  trespass,  §  640. 

liability  of  sheriff's  sureties,  §§  646,  651. 

limitations  of  actions  against  officers,  §§  632,  633. 

measure  of  damages  for  detaining  personal  property,  §  641. 

officer  not  responsible  through  laches  of  another,  §  662. 

offices  of  sheriff  and  tax-collector  separate,  §  664. 

penalty  for  not  paying  over  moneys,  §  659. 

principal  and  deputy — levy  of  separate  writs,  §  665. 

release  of  sheriff  by  stipulation,  §  663. 

remedy  by  m.otion,  §  660. 

seizure  of  mortgaged  personal  property — damages,  §  642. 

sheriff's  notice  to  sureties,  §  647. 

when  demand  necessary,  §§  636,  637. 

when  judgments  cannot  be  set  off,  §  644. 

when  replevin  will  not  lie,  §  643. 


6oO  INDEX. 

SUMMARY  PROCEEDINGS  for  removal,  §  74. 

SUMMONS, 

generally,  §§  100-135. 

by  whom  served,  §  104. 

correction  of  return,  §  130. 

criminal  against  corporation,  §  132. 

delay  in  service,  §§  loi,  114^  ^S- 

effect  of  sherifif's  return,  §  127. 

erasures  in  return,  §  129. 

foi-m  of  return,  §§  1 19-125. 

fraudulent  service,  §  117. 

in  justices'  courts,  §  133. 

no  service  after  return,  §  128. 

office  of,  §  100. 

receipt  by  officer,  §  102. 

refusal  of  service,  §  116. 

return  by  deputy,  §  125. 

return  of  service,  §§  118,  130. 

sent  by  mail  to  jurors,  not  good  service,  §  28. 

service,  generally,  §  105. 

service  against  vessels,  §111. 

service  by  citizen,  §  126. 

service  in  forcible  entry  and  unlawful  detainer,  §  II2. 

service  on  corporations,  §§  106-108. 

service  on  insane  persons,  §  106. 

service  on  minors,  §§  106-109. 

service  on  partnership,  §110. 

service  to  be  personal,  §  113. 

unauthorized  service,  §  135. 

SUPERVISORS, 

attendance  upon,  §  34. 
examination  by,  §  53. 

SURETIES, 

arrest  and  bail,  §§  174,  175. 
defects  in  bond,  effect  of,  §  648. 
in  claim  and  delivery,  §§  181-184. 
joinder  of,  §  645. 
liability  of,  §§  640,  646. 


INDEX.  60 1 

SURETIES  (Continued). 

limitation  of  actions  against,  §  633. 

notice  of  suit,  §  647. 

on  bond  to  release,  §  273. 

on  indemnity  bond,  §  651. 

withdrawal  of,  §  78. 

SURPLUS  on  execution  sale,  §  552. 

SURRENDER  of  books,  etc.,  to  successor,  §  86. 

TAKING  property  in  claim  and  delivery,  §  180. 

TAX-COLLECTOR, 

consolidation  with,  §  12. 
office  separate,  §  664. 

TEAMSTER,  exemptions,  §§  410,  412,  482. 

TELEGRAPH, 

arrest  by,  §  717. 
service  of  writ,  §  67. 

TENDER  on  redemption,  §  485. 

TERM, 

of  imprisonment,  escape,  §  783. 
of  office,  §  5. 

THRESHING  MACHINE,  when  exempt,  §§  415,  416. 

TIME,  computation  of,  §§  92,  93. 

TITLE, 

conveyed  by  execution  sale,  §§  545,  580,  585-587. 
foreclosure  sale,  §  534. 
when  passes,  §  499. 

TOLL-ROAD,  execution  sale,  §  557. 

TOOLS  AND  IMPLEMENTS,  exemption  of,  §  414. 

TRANSFER, 

of  criminal  case,  §  711. 

of  personal  property,  void,  §§  601-616. 

of  prisoners,  §§  770,  771. 

TRESPASS,  liability  of  officer,  §  640. 


602  INDEX. 

UNDER  SHERIFF,  §  57. 

UNDERTAKING  to  release  attachment,  §  272. 
UNDIVIDED  INTEREST,  transfer  of,  §  613. 
UNITED  STATES  PRISONERS,  in  jails,  §  768. 

VACANCY, 

by  conviction  of  offense,  §  yj. 

how  filled,  §  79. 

when  exists,  §§  71,  72. 
VALUELESS  PROPERTY,  attachment  of,  §§  260,  261. 
VESSELS, 

attachment  of,  §  231. 

execution  sale,  §  559. 

service  of  summons,  §  iii. 
VOID, 

levy  of  attachment,  §  240. 

order,  disobedience  of,  §  549. 

sheriff's  deed,  §  510. 
VOIDABLE  WRITS,  §§  344,  347. 

Wi\GES,  attachment  of  exempt,  an  abuse  of  process,  §  315. 
WAIVER, 

of  certain  liens,  §  298. 
WARRANT, 

arrest  without,  §  692. 

on  habeas  corpus,  §  737. 

service  in  another  county,  §  706. 

should  name  defendant,  §  705. 

when  to  be  shown,  §  693. 
WEAPONS,  taking  from  prisoners,  §  701. 
WIFE, 

execution  against,  §  384. 

gift  from  husband  to,  §  385. 
WITHDRAWAL  of  sureties,  §  78. 
WITNESSES, 

exemption  from  arrest,  §§  147,  162,  720. 


INDEX.  603 

WITNESSES  (Continued), 
expenses  of,  §§  144,  156. 
production  of  prisoners,  §  143. 
subpoena  for,  §§  136-155. 

WORKING  OF  PRISONERS,  §§  yj-j,  778. 

WRECKS,  duties  of  sherifif,  §  36. 

WRIT, 

delay  in  service,  §§  31,  32,  64,  114,  115,  234,  235,  342. 

indorsement  of  receipt,  §  23. 

of  assistance,  §§  666-674. 

of  injunction,  §§  20oa-20od. 

of  restitution,  §§  675-689. 

receipt  on  holiday,  §§  64,  213. 

regularity  of,  §§  59,  203,  344,  345. 

service  by  telegraph,  §  67. 

WRIT  OF  RESTITUTION,  §§  675-689. 
colorable  possession  of  land,  §  683. 
error  in  writ,  §  689. 
evasion  of  process,  §  682. 
forcible  entry  against  sherifif,  §  686. 
must  show  right  of  occupancy,  §  687. 
notice  of  pending  suit,  §  681. 
possession  of  third  parties,  §  684. 
requirements  of  writ,  §  675. 
when  mandamus  will  lie,  §  685. 
when  sheriff  may  demand  indemnity,  §  688. 
who  are  bound  by  the  judgment,  §  678. 
who  may  be  removed,  §  680. 
whom  the  sheriff  may  dispossess,  §  677. 
writ  does  not  determine  the  right  of  property,  §  676. 

WRITS    OF    EXECUTION, 

generally,   §§  332-371. 


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